McKenzie v. Apker

Filing 9

FINDINGS and RECOMMENDATIONS to dismiss case for failure to obey court orders 2 , 7 signed by Magistrate Judge Gary S. Austin on 6/11/2015. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/16/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FREDERICK McKENZIE,

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Plaintiff,

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vs.

1:15-cv-00221-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDERS
(Docs. 2, 7.)

CRAIG APKER,

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Defendant.

OBJECTIONS, IF ANY, DUE IN THIRTY
(30) DAYS

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On February 10, 2015 and March 30, 2015, the Court issued orders requiring Plaintiff to

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complete and submit the Court’s form indicating whether he will consent to the jurisdiction of a

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Magistrate Judge in this case under 28 U.S.C. § 636(c), within thirty days. (Docs. 2, 7.) The

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thirty-day deadlines have now passed, and Plaintiff has not submitted the Court’s form or

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otherwise responded to the Court's orders.1

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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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The Court’s first order was not returned to the court by mail. However, the United States Postal Service
returned the second order on April 13, 2015, as undeliverable, with a notation on the envelope indicating that the
mail was “Refused.” (Court Record.)
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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 February 9, 2015. 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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litigating his lawsuit. 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 respond to the Court’s orders 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 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 February 10, 2015 and March 30, 2015.

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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 thirty (30) 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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772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.
Dated:

June 11, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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