Broussard v. Beard, et al

Filing 19

FINDINGS and RECOMMENDATIONS to Dismiss Case for Plaintiff's Failure to Comply with Court Order 16 , signed by Magistrate Judge Gary S. Austin on 11/15/13. Objections, If Any, Due in Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURLY JOHN BROUSSARD, JR., 12 Plaintiff, 13 14 15 16 vs. JEFFREY BEARD, et al., Defendants. 1:13-cv-01569-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER (Doc. 16.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 On October 4, 2013, the court issued an order requiring Plaintiff to submit an 18 application to proceed in forma pauperis or pay the $400.00 filing fee for this action, within 19 thirty days. (Doc. 16.) The thirty day time period has expired, and Plaintiff has not paid the 20 filing fee, submitted an application, or otherwise responded to the court's order. 21 In determining whether to dismiss this action for failure to comply with the directives 22 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 23 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 24 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 25 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 26 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 27 A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@ 28 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 1 1 action has been pending since June 13, 2013. Plaintiff's failure to respond to the court's order 2 may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the court cannot 3 continue to expend its scarce resources assisting a litigant who will not help himself by 4 resolving payment of the filing fee for his lawsuit. Thus, both the first and second factors 5 weigh in favor of dismissal. 6 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 7 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 8 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 9 is Plaintiff's failure to respond to the court's order that is causing delay. Therefore, the third 10 factor weighs in favor of dismissal. 11 As for the availability of lesser sanctions, at this stage in the proceedings there is little 12 available to the court which would constitute a satisfactory lesser sanction while protecting the 13 court from further unnecessary expenditure of its scarce resources. Plaintiff has not paid the 14 filing fee for this action, increasing the likelihood that monetary sanctions of little use, and 15 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 16 available. 17 prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with 18 prejudice. 19 20 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 21 22 However, inasmuch as the dismissal being considered in this case is without Accordingly, the court HEREBY RECOMMENDS that this action be dismissed without prejudice, based on Plaintiff's failure to obey the court=s order of October 4, 2013. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 25 days after being served with these findings and recommendations, Plaintiff may file written 26 objections with the court. Such a document should be captioned "Objections to Magistrate 27 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 28 /// 2 1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: 7 8 9 November 15, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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