Dury v. Copenhaver et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED based on plaintiff's failure to obey the Court's order of February 11, 2013 re 1 Prisoner Civil Rights Complaint filed by Matthew James Dury ; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 03/22/2013. Objections to F&R due by 4/25/2013 (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW JAMES DURY,

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Plaintiff,

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vs.
PAUL COPENHAVER, et al.,

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Defendants.

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1:13-cv-00116-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS TO
DISMISS CASE FOR FAILURE TO OBEY A
COURT ORDER
(Doc. 8.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On February 11, 2013, in response to plaintiff's motion to amend the complaint, the court issued

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an order for plaintiff to file an amended complaint within thirty days. (Doc. 8.) The thirty (30) day

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period has now expired, and plaintiff has not filed an amended complaint 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 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 January 25, 2013. 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 act on his own request to amend the complaint to

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remove defendants who "have no culpability in this action." (M to amend, Doc. 5 at 1 ¶1.) Thus, both

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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.
Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on
plaintiff's failure to obey the court’s order of February 11, 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.

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Dated:
6i0kij

March 22, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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