Tabatabaee v. Santoro et al

Filing 69

FINDINGS and RECOMMENDATIONS Recommending That This Case Be Dismissed for Plaintiff's Failure to Obey Court Order 68 , signed by Magistrate Judge Gary S. Austin on 6/1/17: 14-Day Objection Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX TABATABAEE, 12 13 14 15 Plaintiff, vs. K. SANTORO, et al., Defendants. 16 1:14-cv-01545-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDER (ECF No. 68.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 17 18 On April 13, 2017, the court issued an order requiring Plaintiff to file an opposition or 19 notice of non-opposition to Defendants’ motion for summary judgment, within twenty-one 20 days. (ECF No. 68.) The twenty-one day period has now expired, and Plaintiff has not filed an 21 opposition or non-opposition to the motion for summary judgment or otherwise responded to 22 the court’s order. 23 In determining whether to dismiss this action for failure to comply with the directives 24 set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 26 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 27 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 28 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 1 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 2 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 3 action has been pending since October 2, 2014. Plaintiff’s failure to respond to the court’s 4 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court 5 cannot continue to expend its scarce resources assisting a litigant who will not defend his case 6 against summary judgment. Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 8 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 9 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 10 it is Plaintiff’s failure to file an opposition or notice of non-opposition to Defendants’ motion 11 for summary judgment that is causing delay. Therefore, the third factor weighs in favor of 12 dismissal. 13 As for the availability of lesser sanctions, at this stage in the proceedings there is little 14 available to the court which would constitute a satisfactory lesser sanction while protecting the 15 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 16 prisoner proceeding in forma pauperis, the court finds monetary sanctions of little use, and 17 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 18 available. 19 prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with 20 prejudice. 21 22 However, inasmuch as the dismissal being considered in this case is without Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 23 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed 24 based on Plaintiff’s failure to obey the court’s order of April 13, 2017. These findings and 25 recommendations are submitted to the United States District Judge assigned to the case, 26 pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after the 27 date of service of these findings and recommendations, any party may file written objections 28 with the court. Such a document should be captioned “Objections to Magistrate Judge’s 2 1 Findings and Recommendations.” Any reply to the objections shall be served and filed within 2 ten (10) days after service of the objections. The parties are advised that failure to file 3 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 4 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 5 (9th Cir. 1991)). 6 7 8 9 IT IS SO ORDERED. Dated: June 1, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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