(PC) Stockton v. The State of California et al, No. 1:2010cv00636 - Document 10 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order re 4 ; Objections, if any, due in Thirty Days signed by Magistrate Judge Gary S. Austin on 7/30/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 9/2/2010. (Bradley, A)
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(PC) Stockton v. The State of California et al Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PERCY STOCKTON, 12 13 14 15 Plaintiff, vs. STATE OF CALIFORNIA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:10-cv-00636-OWW-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 4.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 17 On April 14, 2010, the court issued an order requiring plaintiff to either pay the $350.00 filing 18 fee for this action, or submit a certified copy of his prison trust account statement, within thirty days. 19 (Doc. 4.) Due to plaintiff's change of address, the deadline for plaintiff to comply with the court's order 20 was extended. The deadline has now expired, and plaintiff has not paid the filing fee, submitted a 21 certified copy of his trust account statement, or otherwise responded to the court's order. 22 In determining whether to dismiss this action for failure to comply with the directives set forth 23 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 25 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 26 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 28 1 Dockets.Justia.com 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 2 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 3 been pending since April 12, 2010. Plaintiff's failure to respond to the Court's order may reflect 4 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 5 its scarce resources assisting a litigant who will not help himself by paying the filing fee for his lawsuit 6 or submitting a copy of his trust account statement. Thus, both the first and second factors weigh in 7 favor of dismissal. 8 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 9 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 10 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to set 11 forth clear claims in the first instance and to respond to the Court's order in the second instance that is 12 causing delay. Therefore, the third factor weighs in favor of dismissal. 13 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 14 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 15 unnecessary expenditure of its scarce resources. Plaintiff has requested leave to proceed in forma 16 pauperis in this action, making monetary sanctions of little use, and given the early stage of these 17 proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as the 18 dismissal being considered in this case is without prejudice, the Court is stopping short of issuing the 19 harshest possible sanction of dismissal with prejudice. 20 21 22 23 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on plaintiff's failure to obey the court’s order of April 14, 2010. 24 These findings and recommendations are submitted to the United States District Judge assigned 25 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 26 served with these findings and recommendations, plaintiff may file written objections with the court. 27 Such a document should be captioned "Objections to Magistrate Judge's Findings and 28 2 1 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 Dated: 220hhe July 30, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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