Kindred v. California Department of Mental Health et al

Filing 88

FINDINGS And RECOMMENDATIONS To Dismiss Case, With Prejudice, For Plaintiff's Failure To Comply With Court Order And Failure To Prosecute (Doc. 87 ), signed by Magistrate Judge Gary S. Austin on 1/30/2014. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 3/6/2014.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD S. KINDRED,

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Plaintiff,
vs.
CALIFORNIA DEPARTMENT OF
MENTAL HEALTH, et al.,
Defendants.

1:08-cv-01321-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE, WITH PREJUDICE,
FOR PLAINTIFF’S FAILURE TO
COMPLY WITH COURT ORDER AND
FAILURE TO PROSECUTE
(Doc. 87.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On December 19, 2013, the court issued an order requiring Plaintiff to file an opposition

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or a statement of non-opposition to Defendants’ motion for summary judgment of October 10,

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2013, within thirty days. (Doc. 87.) The thirty day time period has expired, and plaintiff has

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not filed any response to the motion for summary judgment or otherwise responded to the

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court's order.

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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 September 2008. Plaintiff's failure to respond to the Court's

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order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court

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

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defending his lawsuit against summary judgment. Thus, both the first and second factors weigh

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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 respond to the Court's order 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

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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. The dismissal being

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considered in this case is with prejudice, which is the harshest possible sanction. However, the

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court finds this sanction appropriate in light of the fact that more than three months have passed

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since defendants filed their motion for summary judgment, and plaintiff has yet to respond.

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Moreover, plaintiff was forewarned in the court's order of December 19, 2013 that this action

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would be dismissed with prejudice if he failed to prosecute this action.

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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 with

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prejudice, based on plaintiff's failure to obey the Court=s order of December 19, 2013 and

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failure to prosecute this action.

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///
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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January 30, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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