Saunders v. Cate et al

Filing 71

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order, signed by Magistrate Judge Gary S. Austin on 12/12/2014, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON SAUNDERS,

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Plaintiff,

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vs.

1:06-cv-01567-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(Doc. 56.)

MATTHEW L. CATE, et al.,
Defendants.

OBJECTIONS, IF ANY, DUE IN THIRTY
(30) DAYS

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On October 8, 2013, the Court issued an order requiring Plaintiff to either file a Fourth

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Amended Complaint or notify the Court that he is willing to proceed with the claims found

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cognizable by the Court, within thirty days.

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extensions of time to comply with the Court’s order. (Docs. 58, 60, 62, 66, 68, 70.) The

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deadline has now expired, and Plaintiff has not filed a Fourth Amended Complaint, a Notice, or

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any other response to the Court's order.

(Doc. 56.)

Plaintiff has been granted six

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In determining whether to dismiss this action for failure to comply with the directives

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set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in

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expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
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A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@

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id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the

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action has been pending since 2006. Plaintiff's failure to respond to the Court's order may

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reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot

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continue to expend its scarce resources assisting a litigant who will not help himself by

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defending his lawsuit. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently

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increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it

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is Plaintiff's failure to file a Fourth Amended Complaint or Notice that is causing delay.

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Therefore, the third 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

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in

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forma pauperis in this action, making monetary sanctions of little use, and given the stage of

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these proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch

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as the dismissal being considered in this case is without prejudice, the Court is stopping short

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of issuing the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based

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on Plaintiff's failure to obey the Court=s order of October 8, 2013. These findings and

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recommendations are submitted to the United States District Judge assigned to the case,

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pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty (30) days after being

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served with these findings and recommendations, Plaintiff may file written objections with the

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court. Such a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Plaintiff is advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 112

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17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 12, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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