Sanchez v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Case without Prejudice for Failure to Obey a Court Order signed by Magistrate Judge Michael J. Seng on 07/16/2013. Referred to Judge Ishii; Objections to F&R due by 8/2/2013.(Flores, E)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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JOSE A. SANCHEZ,
Plaintiff,
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FINDINGS AND RECOMMENDATION
TO DISMISS CASE WITHOUT
PREJUDICE FOR FAILURE TO OBEY A
COURT ORDER
vs.
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CASE No. 1:13-cv-00836-AWI-MJS (PC)
SIX UNKNOWN NAMES AGENTS
OR MR. PRESIDENT OF THE
UNITED STATES BARACK OBAMA,
(ECF No. 2)
OBJECTIONS DUE WITHIN
FOURTEEN (14) DAYS
Defendant(s).
_____________________________/
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On June 3, 2013, Plaintiff, a federal prisoner proceeding pro se, filed what
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was construed as a civil rights complaint pursuant to Bivens v. Six Unknown Agents,
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403 U.S. 388 (1971). (ECF No. 1.) The purported complaint is not signed. It sets forth
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no intelligible claims for relief.
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On June 6, 2013, the Court struck the complaint and ordered Plaintiff to file a
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signed complaint and either file an application to proceed in forma pauperis or pay the
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filing fee by not later than June 24, 2013. (ECF No. 2.) The June 24, 2013 deadline
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passed without Plaintiff having responded further or requested an extension of time to
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do so.
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Local Rule 110 provides that “failure of counsel or of a party to comply with
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these Rules or with any order of the Court may be grounds for imposition by the Court
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of any and all sanctions . . . within the inherent power of the Court.” In determining
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whether to dismiss this action for failure to comply with the directives set forth in its
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order, “the 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
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risk of prejudice to defendants/respondents; (4) the availability of less drastic
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alternatives; and (5) the public policy favoring disposition of cases on their merits.”
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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963
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F.2d 1258, 1260-61 (9th Cir. 1992).
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“The public’s interest in expeditious resolution of litigation always favors
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dismissal.” Id., quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.
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1999). Plaintiff's failure to file a signed complaint form and either file an application to
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proceed in forma pauperis or pay the filing fee may reflect Plaintiff's lack of interest in
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prosecuting his case. In such an instance, the Court cannot continue to expend its
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scarce resources. Thus, both 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
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prejudicial in and of itself to warrant dismissal.” Id., citing Yourish 191 F.3d at 991.
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However, “delay inherently increases the risk that witnesses’ memories will fade and
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evidence will become stale,” id., and it is Plaintiff's failure to file a signed complaint
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form and either file an application to proceed in forma pauperis or pay the filing fee
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that is 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
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is little available to the Court which would constitute a satisfactory lesser sanction while
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protecting the Court from further unnecessary expenditure of its scarce resources.
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Plaintiff has not paid the filing fee for this action and is likely unable to pay, making
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monetary sanctions of little use, and given the early stage of these proceedings, the
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preclusion of evidence or witnesses is not available. However, inasmuch as the
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dismissal being considered in this case is without prejudice, the Court is stopping short
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of issuing the harshest possible sanction of dismissal with prejudice.
Finally, because public policy favors disposition on the merits, this factor will
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always weigh against dismissal. Pagtalunan, 291 F.3d at 643.
Having balanced these factors, the Court finds they weigh in favor of dismissal
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and accordingly HEREBY RECOMMENDS that this action be dismissed without
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prejudice based on Plaintiff's failure to obey the Court’s order of June 6, 2013.
These Findings and Recommendation are submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
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636(b)(l). Within fourteen (14) days after being served with these Findings and
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Recommendation, any party may file written objections with the Court and serve a
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copy on all parties. Such a document should be captioned “Objections to Magistrate
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Judge's Findings and Recommendation.” Any reply to the objections shall be served
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and filed within fourteen (14) days after service of the objections.
Failure to file objections within the specified time may waive the right to appeal
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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:
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July 16, 2013
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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