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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