Sanchez Jimenez v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 8/16/2013 recommending that case be dismissed for failure to obey a court order. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/23/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE SANCHEZ JIMENEZ,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY A COURT ORDER
(Doc. 3.)

vs.

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1:13-cv-01033-GSA-PC

SIX UNKNOWN NAMES AGENTS, et al.,
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

Defendants.

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Jose Sanchez Jimenez (“Plaintiff”) is a federal prisoner proceeding pro se with this civil

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rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed

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the Complaint commencing this action on July 5, 2013. (Doc. 1.) On July 9, 2013, the court

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issued an order striking the Complaint for lack of Plaintiff’s signature, and ordered Plaintiff to

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file a signed amended complaint within thirty days. (Doc. 3.) The thirty-day period has now

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expired, and Plaintiff has not filed an amended complaint or otherwise responded to the court's

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order.1

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The United States Postal Service returned the order on July 26, 2013 as undeliverable. A notation on
the envelope indicates “Attempted - Not Known – Unable to Forward.” However, Plaintiff has not notified the
court of any change in his address. Absent such notice, service at a party=s prior address is fully effective. Local
Rule 182(f).
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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 July 5, 2013. Plaintiff's failure to provide the court with his

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current address may reflect Plaintiff's disinterest in prosecuting this case. In such an instance,

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the Court cannot continue to expend its scarce resources assisting a litigant who will not help

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himself by keeping the court apprised of his current address, so that he can receive and comply

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with court orders. Thus, both the first and second factors 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 sign his Complaint in the first instance and to respond to the Court's

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order in the second instance 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

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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 has not paid the

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filing fee or submitted an application to proceed in forma pauperis in this action, increasing the

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likelihood that that monetary sanctions of little use, and given the early stage of these

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proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as

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the dismissal being considered in this case is without prejudice, the Court is stopping short of

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issuing the harshest possible sanction of dismissal with prejudice.

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///
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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.

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Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based
on Plaintiff's failure to obey the court=s order of July 9, 2013.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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August 16, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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