Freeman v. Finley et al

Filing 28

FINDINGS And RECOMMENDATIONS To Dismiss Case, With Prejudice, For Failure To Obey With Prejudice, For Failure To Obey A Court Order And Failure To Prosecute (Doc. 23 ), Objections, If Any, Due In Thirty Days, signed by Magistrate Judge Gary S. Austin on 6/8/2012. Objections to F&R due by 7/16/2012. (Fahrney, E)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVON LEON FREEMAN, 12 13 14 Plaintiff, vs. G. A. FINLEY, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-00640-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (Doc. 23.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 18 On April 19, 2012, the Court issued an order requiring Plaintiff to file a response to Defendants’ 19 motion for summary judgment, within thirty days. (Doc. 23.) The thirty day period has now expired, 20 and Plaintiff has not filed a response to the motion for summary judgment, or otherwise responded to 21 the Court's order. 22 In determining whether to dismiss this action for failure to comply with the directives set forth 23 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 25 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 26 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 28 1 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 2 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 3 been pending for more than two years. Plaintiff's failure to respond to the Court's order may reflect 4 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 5 its scarce resources assisting a litigant who will not help himself by defending his lawsuit against 6 summary judgment. Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 8 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 9 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to 10 respond to Defendants’ motion for summary judgment that is causing delay. Therefore, the third factor 11 weighs in favor of dismissal. 12 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 13 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 14 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 15 making monetary sanctions of little use, and given the stage of these proceedings, the preclusion of 16 evidence or witnesses is not available. The dismissal being considered in this case is with prejudice, 17 which is the harshest possible sanction. However, the Court finds this sanction appropriate in light of 18 the fact that more than five months have passed since Defendants filed the motion for summary 19 judgment, and Plaintiff has yet to file an opposition. Moreover, Plaintiff was forewarned in the Court's 20 order of April 19, 2012 that the Court would recommend dismissal of this action, with prejudice, if he 21 failed to defend against the motion for summary judgment. 22 23 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 24 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with prejudice, 25 based on Plaintiff's failure to obey the Court’s order of April 19, 2012 and failure to prosecute this 26 action. 27 /// 28 2 1 These findings and recommendations are submitted to the United States District Judge assigned 2 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 3 served with these findings and recommendations, Plaintiff may file written objections with the Court. 4 Such a document should be captioned "Objections to Magistrate Judge's Findings and 5 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 6 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 IT IS SO ORDERED. 9 Dated: 6i0kij June 8, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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