Williams v. Rego et al

Filing 13

FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, without Prejudice, for Failure to Comply with Court Order re 10 , signed by Magistrate Judge Gary S. Austin on 9/17/18. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL B. WILLIAMS,

12

Plaintiff,

13

vs.

14

BRENNA REGO, et al.,

15

Defendants.

1:17-cv-01273-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITHOUT PREJUDICE, FOR
FAILURE TO COMPLY WITH COURT
ORDER
(ECF No. 11.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

16
17
18

I.

BACKGROUND

19

Michael B. Williams (“Plaintiff”) is a civil detainee proceeding pro se and in forma

20

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

21

commencing this action on September 25, 2017. (ECF No. 1.) The court screened the Complaint

22

under 28 U.S.C. § 1915A and issued an order on July 18, 2018, dismissing the Complaint for

23

failure to state a claim, with leave to file an amended complaint within thirty days. (ECF No. 9.)

24

To date, Plaintiff has not filed an amended complaint. However, on July 30, 2018,

25

Plaintiff filed a request to voluntarily dismiss this case, without prejudice and without giving up

26

his appeal rights. (ECF No. 10.) On August 1, 2018, the court issued an order discussing the

27

effects of a voluntary dismissal without prejudice and a voluntary dismissal with prejudice. (ECF

28

No. 11.) Plaintiff was informed that if he dismisses this case without prejudice he will lose his
1

1

right to appeal the dismissal. (Id.) The court’s order required Plaintiff to notify the court, within

2

thirty days, of his intentions regarding voluntary dismissal. (ECF No. 11.) The thirty-day

3

deadline for Plaintiff to notify the court has expired and Plaintiff has not filed any response to

4

the court’s August 1, 2018 order.

5

II.

DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER

6

In determining whether to dismiss this action for failure to comply with the directives set

7

forth in its order, “the Court must weigh the following factors: (1) the public’s interest in

8

expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

9

prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

10

public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

11

642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

12

“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’”

13

id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the

14

action has been pending since September 25, 2017. Plaintiff’s failure to comply with the court’s

15

order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court

16

cannot continue to expend its scarce resources assisting a litigant who will not inform the court

17

of his intentions in litigating his case. Thus, both the first and second factors weigh in favor of

18

dismissal.

19

Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

20

and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

21

increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and

22

it is Plaintiff's failure to respond to the court’s order that is causing delay. Therefore, the third

23

factor weighs in favor of dismissal.

24

As for the availability of lesser sanctions, at this stage in the proceedings there is little

25

available to the court which would constitute a satisfactory lesser sanction while protecting the

26

court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a

27

prisoner proceeding pro se who is proceeding in forma pauperis with this action, the court finds

28

monetary sanctions of little use, and given the early stage of these proceedings, the preclusion of
2

1

evidence or witnesses is not available. However, inasmuch as the dismissal being considered in

2

this case is without prejudice, the court is stopping short of issuing the harshest possible sanction

3

of dismissal with prejudice.

4

Finally, because public policy favors disposition on the merits, this factor will always

5

weigh against dismissal. Id. at 643.

6

III.

7
8

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 August 1, 2018.

9

These findings and recommendations are submitted to the United States District Judge

10

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

11

(14) days from the date of service of these findings and recommendations, Plaintiff may file

12

written objections with the court.

13

Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

14

objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

15

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

16

(9th Cir. 1991)).

Such a document should be captioned “Objections to

17
18
19
20

IT IS SO ORDERED.
Dated:

September 17, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
3