Briones v. Pleasant Valley State Prison et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Case for Failure to Obey Court Order signed by Magistrate Judge Gary S. Austin on 07/09/2014. Referred to Judge 07/09/2014; Objections to F&R due by 8/12/2014. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHNNY GAVINO BRIONES,
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Plaintiff,
vs.
PLEASANT VALLEY STATE PRISON,
et al.,
Defendants.
1:14-cv-00750-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(Doc. 4.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS
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On May 23, 2014, the Court issued an order requiring Plaintiff to either submit a
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completed and signed application to proceed in forma pauperis, or pay the $400.00 filing fee
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for this action, within thirty days. (Doc. 2.) The thirty day period has now expired, and
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Plaintiff has not submitted an application, paid the filing fee, or otherwise responded to the
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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, 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 May 19, 2014. Plaintiff's failure to respond to the Court's order
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may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot
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continue to expend its scarce resources assisting a litigant who will not help himself by
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resolving payment of the filing fee for his lawsuit. Thus, both the first and second factors
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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 seeks to proceed
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in forma pauperis in this action, making monetary sanctions of little use, and given the early
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stage of these proceedings, the preclusion of evidence or witnesses is not available. However,
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inasmuch as the dismissal being considered in this case is without prejudice, the Court is
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stopping short of issuing the harshest possible 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 based
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on plaintiff's failure to obey the Court=s order of May 23, 2014.
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recommendations are submitted to the United States District Judge assigned to the case,
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pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty days after being served
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with these findings and recommendations, Plaintiff may file written objections with the court.
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Such a document should be captioned "Objections to Magistrate Judge's Findings and
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Recommendations." Plaintiff is advised that failure to file objections within the specified time
These findings and
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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
Dated:
July 9, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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