Dustin v. Gipson et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED based on Plaintiff's failure to obey the Court's order of August 20, 2015. re 1 Complaint; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 10/8/15. Objections to F&R due by 11/12/2015 (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DALE OWEN DUSTIN,
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Plaintiff,
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vs.
1:14-cv-01405-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(ECF No. 27.)
C. GIPSON, et al.,
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Defendants.
OBJECTIONS, IF ANY, DUE IN THIRTY
(30) DAYS
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On August 20, 2015, the court issued an order requiring Plaintiff to file a First
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Amended Complaint within thirty days. (ECF No. 27.) The thirty day period has now expired,
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and Plaintiff has not filed a First Amended Complaint or otherwise responded to the court's
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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 June 25, 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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complying with the court’s order to amend his complaint. Thus, both the first and second
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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 file the First Amended Complaint that is causing delay. Therefore, the
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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. Plaintiff is proceeding in
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forma pauperis in this action, making monetary sanctions of little use, and given the early stage
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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 August 20, 2015.
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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 (30) days after being
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served with these findings and recommendations, Plaintiff may file written objections with the
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court. 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
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These findings and
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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th
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Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
October 8, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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