Turcios v. Six Unknown Agents or Mr President of the United States Barack Obama

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 1/23/2014 recommending that action be dismissed re 1 . Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/27/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OMAR A. TURCIOS ALEMAN,

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Plaintiff,
vs.
SIX UNKNOWN NAMES AGENTS,
et al.,
Defendants.

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1:13-cv-01962-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR PLAINTIFF’S
FAILURE TO COMPLY WITH COURT
ORDER
(Doc. 2.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On December 9, 2013, the court issued an order requiring plaintiff to file a signed

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complaint, and either submit an application to proceed in forma pauperis or pay the filing fee

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for this action, within thirty days. (Doc. 2.) The thirty day time period has expired, and

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plaintiff has not filed a signed complaint, paid the filing fee, submitted an application, or

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otherwise responded to the court's order.1

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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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On December 20, 2013, the U.S. Postal Service returned the order as undeliverable, with a notation on
the envelope that the mail was “Undeliverable, Name Not Found.” (Court Record.) Subsequent court mail sent to
plaintiff on December 17, 2013, was returned by the U.S. Postal service as undeliverable on January 9, 2014,
indicating that Plaintiff was “Released.” (Id.) 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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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 December 20, 2013. Plaintiff's failure to apprise the court of his

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current address so he can respond to the court's order may reflect Plaintiff's disinterest in

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prosecuting this case. In such an instance, the court cannot continue to expend its scarce

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resources assisting a litigant who will not help himself by filing a signed complaint in the first

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place, and ensuring that the court has his current address so he can respond to the court’s order.

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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 respond to the court's order that is causing delay. Therefore, the third

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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. Plaintiff has not paid the

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filing fee for this action, making it likely that Plaintiff is indigent, which would make monetary

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sanctions of little use, and given the early stage of these proceedings, the preclusion of

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evidence or witnesses is not available. However, inasmuch as the dismissal being considered in

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this case is without prejudice, the court is stopping short of issuing the harshest possible

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sanction of 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
without prejudice, based on plaintiff's failure to obey the court=s order of December 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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January 23, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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