(PC) Contreraz v. Adams, et al, No. 1:2004cv06039 - Document 56 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS To Dismiss Case For Failure To Prosecute (Doc. 51 ), Objections, If Any, Due In Thirty Days, signed by Magistrate Judge Gary S. Austin on 12/10/2010. The Court RECOMMENDS that this action be dismissed based on Plaintiff's failure to prosecute this action F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/13/2011.(Fahrney, E)

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(PC) Contreraz v. Adams, et al Doc. 56 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 QUETZAL CONTRERAZ, 12 Plaintiff, 13 vs. 14 D. ADAMS, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) 1:04-cv-06039-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO PROSECUTE (Doc. 51.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 17 Quetzal Contreraz (“Plaintiff”) is a prisoner proceeding pro se in this civil rights action pursuant 18 to 42 U.S.C. § 1983. On May 17, 2010, Defendant Adams filed a motion to dismiss this action. (Doc. 19 44.) Plaintiff's opposition was due within twenty-one days. Local Rule 230. On July 14, 2010, Plaintiff 20 requested an extension of time, which was granted on July 16, 2010. (Docs. 45, 46.) On October 6, 21 2010, the Court granted Plaintiff another extension of time for forty-five days. (Doc. 51.) The forty-five 22 day period has now expired, and Plaintiff has not file an opposition or requested another extension of 23 time. 24 In determining whether to dismiss this action for failure to comply with the directives set forth 25 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 26 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 27 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 28 1 Dockets.Justia.com 1 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 2 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 3 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 4 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 5 been pending for more than six years. Plaintiff's failure to respond to the Court's order may reflect 6 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 7 its scarce resources assisting a litigant who will not help himself by defending his case against a motion 8 to dismiss. Thus, both the first and second factors weigh in 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 12 prosecute his case that is 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 is proceeding in forma pauperis in this action, 16 making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion 17 of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this 18 case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of 19 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 prosecute this action. 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 4 5 IT IS SO ORDERED. Dated: 6i0kij December 10, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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