Morgan v. Tilton et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KELLY MORGAN,
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Plaintiff,
vs.
TILTON, et al.,
Defendants.
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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
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On March 16, 2011, the court issued an order giving plaintiff two options, to file an amended
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complaint or to notify the court of his willingness to proceed with the claims found cognizable by the
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court, within thirty (30) days. The thirty (30) day period has now expired, and plaintiff has not filed an
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amended complaint or 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 three 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 either amending the complaint or
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notifying the court of his willingness to proceed on the claims found cognizable by the Court. Thus,
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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 set
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forth clear claims in the first instance and to respond to the Court's order in the second instance that is
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causing delay. 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 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 being considered in this
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case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of
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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.
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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.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being
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served with these findings and recommendations, plaintiff may file written objections with the court.
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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 may
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waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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May 6, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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