Clowers v. Mims et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Orders 2 , 13 , signed by Magistrate Judge Gary S. Austin on 1/4/15: Objections, if any, due in twenty (20) Days. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TROY LEON CLOWERS, JR.,
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Plaintiff,
vs.
1:14-cv-01488-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDERS
(Docs. 2, 13.)
MARGARET MIMS, et al.,
Defendants.
OBJECTIONS, IF ANY, DUE IN TWENTY
(20) DAYS
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On September 24, 2014, and November 10, 2014, the Court issued orders requiring
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Plaintiff to complete and return the Court’s form indicating consent or decline of Magistrate
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Judge jurisdiction under 28 U.S.C. § 636(c), within thirty days. (Docs. 2, 13.) The most recent
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thirty day period has now expired, and Plaintiff has not submitted the Court’s form.
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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 September 24, 2014. 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 help himself by
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responding to court orders. 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 submit the Court’s form that is causing delay. Therefore, the third factor
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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.
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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based
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on Plaintiff's failure to obey the Court=s orders of September 24, 2014, and November 10, 2014.
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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 twenty (20) days
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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 result in the waiver of rights on appeal. Wilkerson v. Wheeler,
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__ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter
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v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
January 4, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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