Stallworth v. Kramer et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED based on Plaintiff's failure to obey the Court's Orders of November 10, 2015 and October 20, 2016 re 8 Amended Prisoner Civil Rights Complaint filed by Levell Stallworth; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 8/31/17. Objections to F&R due by 9/25/2017 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEVELL STALLWORTH,

1:15-cv-01690-AWI-GSA-PC

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO OBEY
COURT ORDERS
(ECF Nos. 3, 6.)

NORM KRAMER, et al.,

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OBJECTIONS, IF ANY, DUE IN TWENTY
(20) DAYS

Defendants.

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On November 10, 2015, and October 20, 2016, the court issued orders requiring

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Plaintiff to complete the court’s form, indicating whether he consents to or declines Magistrate

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Judge jurisdiction, and return the form to the court within thirty days. (ECF Nos. 3, 6.) The

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thirty-day time periods have now expired, and Plaintiff has not returned the court’s

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consent/decline form.

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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 November 2015. Plaintiff’s failure to respond to the court’s

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orders 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 court

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orders. 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 submit the court’s consent/decline form that is causing delay.

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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

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proceeding in forma pauperis in this action, 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 orders of November 10, 2015, and October 20,

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2016. 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 twenty

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(20) days after being served with 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

Such a document should be captioned “Objections to

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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:

August 31, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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