(PC)Burkett v. Clark et al, No. 1:2010cv01461 - Document 26 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 12/6/2012 recommending case be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/10/2013. (Lundstrom, T)
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(PC)Burkett v. Clark et al Doc. 26 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. BURKETT, 12 13 14 15 Plaintiff, vs. KEN CLARK, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:10-cv-01461-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 20.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 17 On May 30, 2012, the court issued an order giving plaintiff two options, to file an amended 18 complaint or to notify the court of his willingness to proceed with the claims found cognizable by the 19 court, within thirty (30) days. (Doc. 20.) Plaintiff requested and was granted two extensions of time to 20 comply with the court's order. (Docs. 22, 25.) The latest deadline has now expired, and plaintiff has not 21 filed an amended complaint or notice to the court, 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 for more than two years. 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 either submitting an amended 6 pleading making the clarifications required by the Court or by notifying the court of his willingness to 7 proceed on the claims found cognizable by the Court. Thus, both the first and second factors weigh in 8 favor of dismissal. 9 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 10 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 11 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to set 12 forth clear claims in the first instance and to respond to the Court's order in the second instance that is 13 causing delay. Therefore, the third factor weighs in favor of dismissal. 14 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 15 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 16 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 17 making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion 18 of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this 19 case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of 20 dismissal with prejudice. 21 22 23 24 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 May 30, 2012. 25 These findings and recommendations are submitted to the United States District Judge assigned 26 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 27 served with these findings and recommendations, plaintiff may file written objections with the court. 28 2 1 Such a document should be captioned "Objections to Magistrate Judge's Findings and 2 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 3 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED. 6 Dated: 6i0kij December 6, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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