(PC) Sallem Masaloshy v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama, No. 1:2012cv01424 - Document 5 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Based on Plaintiff's Failure to Obey the Court's Order of August 31, 2012, re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 10/12/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)
Download PDF
<![CDATA[
(PC) Sallem Masaloshy v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SALLEM MASALOSHY, 12 13 14 1:12-cv-01424-AWI-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 3.) v. SIX UNKNOWN NAMES AGENTS, et al., OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 15 Defendants. 16 / 17 18 Plaintiff is a federal prisoner proceeding pro se with this civil rights action pursuant to 19 Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). On August 31, 2012, the Court issued an 20 order striking plaintiff's Complaint for lack of signature and requiring Plaintiff to file a signed 21 Complaint and either pay the filing fee for this action or submit an application to proceed in 22 forma pauperis pursuant to 28 U.S.C. § 1915, within thirty days. The thirty day period has now 23 expired, and Plaintiff has not filed a signed Complaint, paid the filing fee, submitted an 24 application, or otherwise responded to the Court's order. 25 Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules 26 or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” In determining whether to dismiss this 28 action for failure to comply with the directives set forth in its order, “the Court must weigh the 1 Dockets.Justia.com 1 following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s 2 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 3 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their 4 merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 5 F.2d 1258, 1260-61 (9th Cir. 1992)). 6 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 7 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 8 action has been pending since August 30, 2012. Plaintiff's failure to comply with the Court's 9 order may reflect Plaintiff's lack of interest in prosecuting his case. In such an instance, the 10 Court cannot continue to expend its scarce resources assisting a litigant who will not file a signed 11 Complaint and resolve payment of the filing fee for his lawsuit. Thus, both the first and second 12 factors weigh in favor of dismissal. 13 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 14 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 15 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 16 is plaintiff's failure to comply with the Court's order that is causing delay. Therefore, the third 17 factor weighs in favor of dismissal. 18 As for the availability of lesser sanctions, at this stage in the proceedings there is little 19 available to the Court which would constitute a satisfactory lesser sanction while protecting the 20 Court from further unnecessary expenditure of its scarce resources. Plaintiff has not paid the 21 filing fee for this action and is likely unable to pay, making monetary sanctions of little use, and 22 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 23 available. However, inasmuch as the dismissal being considered in this case is without 24 prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with 25 prejudice. 26 Finally, because public policy favors disposition on the merits, this factor will always 27 weigh against dismissal. Id. at 643. 28 /// 2 1 2 3 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the Court’s order of August 31, 2012. These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 5 after being served with these findings and recommendations, Plaintiff may file written objections 6 with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings 7 and Recommendations." Plaintiff is advised that failure to file objections within the specified 8 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 9 (9th Cir. 1991). 10 11 12 IT IS SO ORDERED. Dated: 6i0kij October 12, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
