Brown v. Brown, et al.

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 8/25/2014 recommending that 1 Prisoner Civil Rights Complaint be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/18/2014. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOEL BROWN, 12 13 14 15 16 Plaintiff, vs. GOVERNOR EDMUND G. BROWN, JR., et al., Defendants. 1:14-cv-00648-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDERS (Docs. 3, 11.) OBJECTIONS, IF ANY, DUE IN TWENTY (20) DAYS 17 18 19 On May 8, 2014, the Court issued an order requiring Plaintiff to either submit an 20 application to proceed in forma pauperis or pay the $400.00 filing fee for this action, within 21 forty-five days. (Doc. 11.) On June 26, 2014, Plaintiff filed a motion for extension of time to 22 comply with the order. (Doc. 9.) On July 9, 2014, the Court denied the motion for extension of 23 time and issued an order for Plaintiff to show cause, within thirty days, why this case should 24 not be dismissed for his failure to comply with the May 8, 2014 order. (Doc. 11.) The thirty- 25 day deadline has passed, and Plaintiff has not responded to the order to show cause. 26 In determining whether to dismiss this action for failure to comply with the directives 27 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 28 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 1 1 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 2 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 3 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 4 A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@ 5 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 6 action has been pending since May 1, 2014. Plaintiff's failure to respond to the Court's orders 7 may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot 8 continue to expend its scarce resources assisting a litigant who will not help himself by 9 resolving payment of the filing fee for his lawsuit or defending his lawsuit against dismissal. 10 Thus, both the first and second factors weigh in favor of dismissal. 11 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 12 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 13 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 14 is Plaintiff's failure to respond to the Court's orders that is causing delay. Therefore, the third 15 factor weighs in favor of dismissal. 16 As for the availability of lesser sanctions, at this stage in the proceedings there is little 17 available to the Court which would constitute a satisfactory lesser sanction while protecting the 18 Court from further unnecessary expenditure of its scarce resources. Plaintiff has not paid the 19 filing fee for this action, making it likely that he is indigent and monetary sanctions are of little 20 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is 21 not available. However, inasmuch as the dismissal being considered in this case is without 22 prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with 23 prejudice. 24 25 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 26 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed 27 without prejudice, based on Plaintiff's failure to obey the Court=s orders of May 8, 2014 and 28 July 9, 2014. 2 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty 3 (20) days after being served with these findings and recommendations, Plaintiff may file 4 written objections with the court. 5 Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file 6 objections within the specified time may waive the right to appeal the District Court's order. 7 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Such a document should be captioned "Objections to 8 9 10 11 IT IS SO ORDERED. Dated: August 25, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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