Morgan v. Tilton et al

Filing 38

FINDINGS And RECOMMENDATIONS To Dismiss Case For Failure To Obey A Court Order (Doc. 37 ), Objections, If Any, Due In Thirty Days, signed by Magistrate Judge Gary S. Austin on 5/6/2011. Amended Prisoner Civil Rights Complaint filed by Kelly Morgan. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 6/9/2011.(Fahrney, E)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KELLY MORGAN, 11 12 13 14 Plaintiff, vs. TILTON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:08-cv-00233-OWW-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 37.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 15 16 On March 16, 2011, the court issued an order giving plaintiff two options, to file an amended 17 complaint or to notify the court of his willingness to proceed with the claims found cognizable by the 18 court, within thirty (30) days. The thirty (30) day period has now expired, and plaintiff has not filed an 19 amended complaint or otherwise responded to the court's order. 20 In determining whether to dismiss this action for failure to comply with the directives set forth 21 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 22 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 23 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 24 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 27 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 28 1 1 been pending for more than three years. Plaintiff's failure to respond to the Court's order may reflect 2 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 3 its scarce resources assisting a litigant who will not help himself by either amending the complaint or 4 notifying the court of his willingness to proceed on the claims found cognizable by the Court. Thus, 5 both the first and second factors weigh in favor of dismissal. 6 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 7 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 8 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to set 9 forth clear claims in the first instance and to respond to the Court's order in the second instance that is 10 causing delay. Therefore, the third factor weighs in favor of dismissal. 11 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 12 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 13 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 14 making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion 15 of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this 16 case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of 17 dismissal with prejudice. 18 19 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 20 21 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on plaintiff's failure to obey the court’s order of March 16, 2011. 22 These findings and recommendations are submitted to the United States District Judge assigned 23 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 24 served with these findings and recommendations, plaintiff may file written objections with the court. 25 Such a document should be captioned "Objections to Magistrate Judge's Findings and 26 /// 27 /// 28 2 1 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: 6i0kij May 6, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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