Hamilton v. Hart et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 11/5/2014 recommending that case be dismissed re 1 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/8/2014. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DENNIS L. HAMILTON,
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Plaintiff,
vs.
1:10-cv-00272-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(Doc. 46.)
JOHN HART, et al.,
Defendants.
OBJECTIONS, IF ANY, DUE IN THIRTY
(30) DAYS
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On July 17, 2014, the Court issued an order requiring Plaintiff to file a response to
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Defendants' motion for summary judgment by October 19, 2014. (Doc. 46.) The deadline has
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now expired, and Plaintiff has not filed a response to the motion for summary judgment or
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requested an extension of time to comply with the 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 February 18, 2010. Plaintiff's failure to respond to the Court's
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order may reflect Plaintiff's inability to adhere to the court’s deadlines to prosecute this case.
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In such an instance, the Court cannot continue to expend its scarce resources assisting a litigant
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who will not help himself by defending his lawsuit. Thus, both the first and second factors
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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 respond to Defendants’ motion for summary judgment that is causing
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delay. Therefore, the third factor weighs in favor of dismissal.
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As for the availability of lesser sanctions, at this stage of 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 four months have passed since
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Defendants filed the motion for summary judgment, and Plaintiff has yet to appropriately
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respond. Moreover, Plaintiff was forewarned in the Court's order of July 17, 2014 that his
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failure to comply with the court’s order may result in the dismissal of 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.
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 July 17, 2014.
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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 days after being served
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These findings and
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with these findings and recommendations, any party 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." The parties are advised that failure to file objections within the specified
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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
November 5, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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