Matthew V. Salinas v. Pogue et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order 63 , signed by Magistrate Judge Gary S. Austin on 9/21/2018: 14-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MATTHEW V. SALINAS,
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Plaintiff,
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vs.
1:16-cv-00520-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(ECF No. 63.)
KENNETH J. POGUE, et al.,
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Defendants.
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS
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I.
BACKGROUND
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Matthew V. Salinas (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s
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Third Amended Complaint, filed on January 17, 2018, against defendants K. Gomness and P.
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Palmer (“Defendants”) in their official capacities for intentional discrimination in violation of
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the ADA.1 (ECF No. 44.) On July 6, 2018, Defendants filed a motion to dismiss the Third
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Amended Complaint, which is pending. (ECF No. 58.)
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On August 9, 2018, the court issued an order requiring Plaintiff to file an opposition or a
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statement of non-opposition to Defendants’ motion to dismiss within thirty days. (ECF No. 63.).
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All other claims and defendants were dismissed from this action by the court on April 27, 2018.
(ECF No. 51.)
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The thirty-day time period has now expired, and Plaintiff has not filed an opposition, a statement
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of non-opposition, or any other response to the motion to dismiss or to the court’s order.
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Therefore, Plaintiff failed to comply with the court’s August 9, 2018, 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 April 14, 2016. Plaintiff’s failure to comply with the court’s order
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may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court cannot
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continue to expend its scarce resources assisting a litigant who will not defend against a motion
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to dismiss his case. 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 respond to the motion to dismiss that is causing delay. Therefore, the
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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 pro se and in forma pauperis, the court finds monetary sanctions of little
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use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not
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available. However, inasmuch as the dismissal being considered in this case is without prejudice,
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the court is 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
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weigh against dismissal. Id. at 643.
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III.
CONCLUSION AND RECOMMENDATIONS
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Based on the foregoing, the court HEREBY RECOMMENDS that this action be
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dismissed, without prejudice, based on Plaintiff’s failure to obey the court’s order of August 9,
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2018.
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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 after the date of service of these findings and recommendations, any party may file
Such a document should be captioned “Objections to
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written objections with the court.
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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
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and filed within fourteen (14) days after the date the objections are filed. The parties are advised
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that failure to file objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 21, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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