Plata v. Woodford et al
Filing
59
ORDER DISMISSING CASE, Without Prejudice, For Failure to Obey a Court Order 57 ; ORDER For Clerk to Close Case, signed by Magistrate Judge Gary S. Austin on 10/17/2011. CASE CLOSED. (Marrujo, C)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARCIAL PLATA,
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Plaintiff,
vs.
WOODFORD, et al.,
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Defendants.
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1:06-cv-01023-GSA-PC
ORDER DISMISSING CASE, WITHOUT
PREJUDICE, FOR FAILURE TO OBEY A
COURT ORDER
(Doc. 57.)
ORDER FOR CLERK TO CLOSE CASE
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Marcial Plata ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis with
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this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the First Amended
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Complaint, filed by Plaintiff on December 10, 2008, against defendants Watson and Corona
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("Defendants"), on Plaintiff's claims for retaliation and failure to protect.1 (Doc. 19.) The parties to this
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action have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and on January
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27, 2011, the case was reassigned to the undersigned to conduct any and all proceedings in the case,
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including trial and entry of final judgment. (Docs. 3, 48, 49.)
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On August 12, 2011, the Court issued an order extending the deadline until September 30, 2011,
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for Plaintiff to file a response to Defendants' motion for terminating sanctions. (Doc. 57.) The deadline
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This action also proceeds against a Doe Defendant; however, Plaintiff has not identified this defendant or provided
information to enable service of process.
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expired more than two weeks ago, and Plaintiff has not filed a response to Defendants' motion or
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otherwise responded to the Court's order.
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In determining whether to dismiss this action for failure to comply with the directives set forth
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in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring
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disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.
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(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has
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been pending for more than five years. Plaintiff's failure to respond to the Court's order may reflect
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Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend
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its scarce resources assisting a litigant who will not help himself by defending his case against a motion
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for terminating sanctions. Thus, both the first and second factors weigh in favor of dismissal.
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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of
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itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk
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that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to
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defend against defendants' motion for terminating sanctions that is causing delay. Therefore, the third
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factor weighs in favor of dismissal.
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As for the availability of lesser sanctions, at this stage in the proceedings there is little available
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to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further
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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action,
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making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion
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of evidence or witnesses is not available. However, inasmuch as the dismissal in this case is without
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prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with
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prejudice.
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Finally, because public policy favors disposition on the merits, this factor will always weigh
against dismissal. Id. at 643.
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Therefore, based on the foregoing analysis, this action shall be dismissed without prejudice.
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Accordingly, IT IS HEREBY ORDERED that:
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This action is dismissed, without prejudice, based on Plaintiff's failure to obey the
Court’s order of August 12, 2011; and
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2.
The Clerk is directed to close this case.
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IT IS SO ORDERED.
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Dated:
6i0kij
October 17, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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