(PC) Oudin v. Tulare County Sheriff's Department et al, No. 1:2008cv00815 - Document 23 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order re 22 ; Objections, if any, due in Thirty Days signed by Magistrate Judge Gary S. Austin on 11/5/2009. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/8/2009. (Bradley, A)

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(PC) Oudin v. Tulare County Sheriff's Department et al Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES C. OUDIN, 12 13 14 Plaintiff, vs. TULARE COUNTY SHERIFF'S DEPARTMENT, et al., 15 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00815-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 18 On September 8, 2009, the Court issued an order giving Plaintiff two options, to file a third 19 amended complaint or to notify the Court of his willingness to proceed with the claims found cognizable 20 by the court, within thirty (30) days. More than forty-five days have passed, and Plaintiff has not filed 21 a third amended complaint 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 sixteen months. 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 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 23 Accordingly, the court HEREBY RECOMMENDS that: 24 1. 25 court’s order of September 8, 2009; and 26 27 28 This action be dismissed, without prejudice, based on Plaintiff's failure to obey the 2. The Clerk be directed to close this case. /// 2 1 These findings and recommendations are submitted to the United States District Judge assigned 2 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 3 served with these findings and recommendations, plaintiff may file written objections with the court. 4 Such a document should be captioned "Objections to Magistrate Judge's Findings and 5 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 6 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 IT IS SO ORDERED. Dated: 6i0kij November 5, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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