(PC) Saunders v. Cate et al, No. 1:2006cv01567 - Document 63 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Plaintiff's Failure to Comply With Court Order 56 , signed by Magistrate Judge Gary S. Austin on 6/9/14: Objections, if any, due in thirty days. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON SAUNDERS, 12 Plaintiff, 13 14 15 16 vs. MATTHEW L. CATE, et al., Defendants. 1:06-cv-01567-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER (Doc. 56.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 18 19 On October 8, 2013, the court issued an order requiring Plaintiff to either file a Fourth 20 Amended Complaint or notify the court of his willingness to proceed with the claims found 21 cognizable by the court, within thirty days. (Doc. 56.) To date, Plaintiff has requested and 22 been granted four extensions of time to comply with the court’s order. (Docs. 57-62.) The 23 latest deadline to comply with the order has expired, and Plaintiff has not filed an amended 24 complaint or a notice, or otherwise responded to the court's order. 25 In determining whether to dismiss this action for failure to comply with the directives 26 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 27 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 28 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 1 1 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 2 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 3 A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@ 4 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 5 action has been pending since October 13, 2006. Plaintiff's failure to respond to the Court's 6 order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court 7 cannot continue to expend its scarce resources assisting a litigant who will not help himself by 8 amending the complaint or notifying the court of his willingness to proceed. Thus, both the 9 first and second factors weigh in favor of dismissal. 10 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 11 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 12 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 13 is Plaintiff's failure to respond to the Court's orders that is causing delay. Therefore, the third 14 factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, at this stage in the proceedings there is little 16 available to the Court which would constitute a satisfactory lesser sanction while protecting the 17 Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in 18 forma pauperis in this action, making monetary sanctions of little use, and given the early stage 19 of these proceedings, the preclusion of evidence or witnesses is not available. However, 20 inasmuch as the dismissal being considered in this case is without prejudice, the Court is 21 stopping short of issuing the harshest possible sanction of dismissal with prejudice. 22 23 24 25 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 without prejudice, based on Plaintiff's failure to obey the court=s order of October 8, 2013. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 28 days after being served with these findings and recommendations, Plaintiff may file written 2 1 objections with the court. Such a document should be captioned "Objections to Magistrate 2 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 3 within the specified time may waive the right to appeal the District Court's order. Martinez v. 4 Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 7 8 IT IS SO ORDERED. Dated: June 9, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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