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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALEX TABATABAEE,

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Plaintiff,
vs.
K. SANTORO, et al.,
Defendants.

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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

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On April 13, 2017, the court issued an order requiring Plaintiff to file an opposition or

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notice of non-opposition to Defendants’ motion for summary judgment, within twenty-one

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days. (ECF No. 68.) The twenty-one day period has now expired, and Plaintiff has not filed an

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opposition or non-opposition to the motion for summary judgment or otherwise responded to

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the 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, “the 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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“‘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 October 2, 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 defend his case

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against summary judgment. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and

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it is Plaintiff’s failure to file an opposition or notice of non-opposition to Defendants’ motion

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for summary judgment that is causing delay. Therefore, the third factor weighs in favor of

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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. Given that Plaintiff is a

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prisoner proceeding in forma pauperis, the court finds monetary sanctions of little use, and

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given the early stage of these proceedings, the preclusion of evidence or witnesses is not

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available.

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prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with

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prejudice.

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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.

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed

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based on Plaintiff’s failure to obey the court’s order of April 13, 2017. These findings and

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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 fourteen (14) days after the

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date of service of these findings and recommendations, any party may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Any reply to the objections shall be served and filed within

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ten (10) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 1, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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