Harris v. German et al
Filing
96
FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order signed by Magistrate Judge Gary S. Austin on 7/23/2020. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVONTE B. HARRIS,
Plaintiff,
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vs.
HUMBERTO GERMAN, et al.,
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Defendants.
1:15-cv-01462-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(ECF No. 92.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS
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I.
BACKGROUND
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Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
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commencing this action on September 28, 2015. (ECF No. 1.)
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On June 5, 2020, the court issued an order requiring the parties to respond whether they
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believe that a settlement would be beneficial in this case, within thirty days. (ECF No. 92.) On
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July 1, 2020, Defendants filed a response indicating their belief that a settlement conference may
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be beneficial. (ECF No. 94.) The thirty-day time period has now expired and Plaintiff has not
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filed a response. Therefore, Plaintiff has failed to comply with the court’s June 5, 2020 order.
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II.
DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER
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In determining whether to dismiss this action for failure to comply with the directives set
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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 639,
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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 September 25, 2015. Plaintiff’s failure to comply with 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 respond to the
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court’s order. 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 indicate whether he is willing to participate in a settlement conference
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that is causing delay. Therefore, the 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. Given that Plaintiff is a
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prisoner proceeding in forma pauperis, the court finds monetary sanctions of little use, and given
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the stage 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 stopping
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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
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weigh against dismissal. Id. at 643.
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III.
CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the court HEREBY RECOMMENDS that this action be
dismissed based on Plaintiff’s failure to obey the court’s order of June 5, 2020.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days from the date of service of these findings and recommendations, Plaintiff may file
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written objections with the court.
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is 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)).
Such a document should be captioned “Objections to
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IT IS SO ORDERED.
Dated:
July 23, 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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