(PC) Hamilton v. Hart et al, No. 1:2010cv00272 - Document 49 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 11/5/2014 recommending that case be dismissed re 1 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/8/2014. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS L. HAMILTON, 12 13 14 15 Plaintiff, vs. 1:10-cv-00272-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER (Doc. 46.) JOHN HART, et al., Defendants. OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS 16 17 18 19 On July 17, 2014, the Court issued an order requiring Plaintiff to file a response to 20 Defendants' motion for summary judgment by October 19, 2014. (Doc. 46.) The deadline has 21 now expired, and Plaintiff has not filed a response to the motion for summary judgment or 22 requested an extension of time to comply with the court’s order. 23 In determining whether to dismiss this action for failure to comply with the directives 24 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 25 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 26 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 27 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 28 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 1 1 A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@ 2 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 3 action has been pending since February 18, 2010. Plaintiff's failure to respond to the Court's 4 order may reflect Plaintiff's inability to adhere to the court’s deadlines to prosecute this case. 5 In such an instance, the Court cannot continue to expend its scarce resources assisting a litigant 6 who will not help himself by defending his lawsuit. Thus, both the first and second factors 7 weigh in favor of dismissal. 8 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 9 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 10 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 11 is Plaintiff's failure to respond to Defendants’ motion for summary judgment that is causing 12 delay. Therefore, the third factor weighs in favor of dismissal. 13 As for the availability of lesser sanctions, at this stage of the proceedings there is little 14 available to the Court which would constitute a satisfactory lesser sanction while protecting the 15 Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in 16 forma pauperis in this action, making monetary sanctions of little use, and given the stage of 17 these proceedings, the preclusion of evidence or witnesses is not available. The dismissal being 18 considered in this case is with prejudice, which is the harshest possible sanction. However, the 19 Court finds this sanction appropriate in light of the fact that four months have passed since 20 Defendants filed the motion for summary judgment, and Plaintiff has yet to appropriately 21 respond. Moreover, Plaintiff was forewarned in the Court's order of July 17, 2014 that his 22 failure to comply with the court’s order may result in the dismissal of this action. 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 based 26 on Plaintiff's failure to obey the court=s order of July 17, 2014. 27 recommendations are submitted to the United States District Judge assigned to the case, 28 pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty days after being served 2 These findings and 1 with these findings and recommendations, any party may file written objections with the court. 2 Such a document should be captioned "Objections to Magistrate Judge's Findings and 3 Recommendations." The parties are advised that failure to file objections within the specified 4 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 5 (9th Cir. 1991). 6 7 8 9 IT IS SO ORDERED. Dated: November 5, 2014 /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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