Washington v. Ogletree et al

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order 1 OBJECTIONS, IF ANY, DUE IN 30 DAYS, signed by Magistrate Judge Gary S. Austin on 2/21/13. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANKIE WASHINGTON,

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Plaintiff,

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vs.
D. OGLETREE, et al.,

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1:12-cv-01473-AWI-GSA (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO OBEY A
COURT ORDER
OBJECTIONS, IF ANY, DUE IN 30 DAYS

Defendants.
______________________________/

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On January 3, 2013, the court issued an order requiring Plaintiff to complete and return the

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court's form indicating whether he consents to, or declines, Magistrate Judge jurisdiction in this case

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pursuant to 28 U.S.C. § 636(c), within thirty days. (Doc. 5.) The thirty-day period has now expired, and

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plaintiff has not returned the form 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 since September 10, 2012. This is the second order the court has issued in this case

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requesting plaintiff to complete and return the court's form, and plaintiff has not responded to either of

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the orders. Plaintiff's failure to respond to the court's orders may reflect Plaintiff's disinterest in

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prosecuting this case. In such an instance, the court cannot continue to expend its scarce resources

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assisting a litigant who will not participate in his lawsuit by responding to court orders. Thus, both the

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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

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respond to the Court's order that is causing delay. Therefore, the third factor weighs in favor of

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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.
Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on
plaintiff's failure to obey the court’s order of January 3, 2013.

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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.
Dated:
6i0kij

February 21, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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