Ransom v. McCabe et al

Filing 90

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order 84 , signed by Magistrate Judge Gary S. Austin on 9/29/17. Referred to Judge Drozd. Objections to F&R Due Within 14-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRYAN E. RANSOM,
Plaintiff,

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vs.

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1:13-cv-01779-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS TO
DISMISS CASE FOR FAILURE TO OBEY COURT
ORDER
(ECF No. 84.)

McCABE, et al.,
Defendants.

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OBJECTIONS, IF ANY, DUE IN FOURTEEN (14)
DAYS

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I.

BACKGROUND
Bryan E. Ransom (“Plaintiff”) is a state prisoner proceeding pro se and in forma

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

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On August 16, 2017, the court issued an order requiring Plaintiff to respond in writing

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within thirty days, showing cause why defendant Brooks should not be dismissed from this

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action. (ECF No. 84.) Plaintiff was forewarned that his failure to comply with the court’s

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order would result in a recommendation that this action be dismissed. (Id. at 2 ¶2.) The thirty-

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day time period has now expired and Plaintiff has not responded to the court’s order.

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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, “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 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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“‘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 November 5, 2013. Plaintiff’s failure to respond to the court’s

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order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court

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cannot continue to expend its scarce resources assisting a litigant who will not respond to court

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orders. 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 prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and

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it is Plaintiff's failure to respond to the court’s order to show cause that is causing delay.

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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

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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. Given that Plaintiff is a

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prisoner proceeding pro se and in forma pauperis, the court finds monetary sanctions of little

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use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is

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not available. However, inasmuch as the dismissal being considered in this case is without

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prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with

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prejudice.

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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 against Defendant

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Brooks be dismissed based on Plaintiff's failure to obey the court’s order of August 16, 2017.

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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 fourteen (14)

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days of the date of service of these findings and recommendations, any party 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.” The parties are advised that failure to file objections

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within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

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772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.
Dated:

September 29, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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