(PC) Armstrong v. Hedgpeth, et al., No. 1:2011cv00761 - Document 62 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be Dismissed Based on Plaintiff's Failure to Obey the Court's Order of August 25, 2014 re First 43 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gary S. Austin on 11/10/2014. Referred to Judge O'Neill. Objections to F&R due within twenty (20) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRADY ARMSTRONG, 12 13 14 15 Plaintiff, vs. 1:11-cv-00761-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER (Doc. 59.) A. HEDGPETH, et al., Defendants. OBJECTIONS, IF ANY, DUE IN TWENTY (20) DAYS 16 17 18 19 20 On August 25, 2014, the Court issued an order requiring Plaintiff to complete and 21 submit service documents to the court within thirty days. (Doc. 59.) Plaintiff requested and 22 was granted a thirty-day extension of time to submit the documents. (Docs. 60, 61.) The latest 23 thirty day period has now expired, and Plaintiff has not submitted service documents or 24 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 May 11, 2011. Plaintiff's failure to respond to the Court's order 6 may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot 7 continue to expend its scarce resources assisting a litigant who will not help himself by 8 defending his lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 9 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 10 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 11 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 12 is Plaintiff's failure to submit documents to initiate service of process for his lawsuit 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 15 available to the Court which would constitute a satisfactory lesser sanction while protecting the 16 Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in 17 forma pauperis in this action, making monetary sanctions of little use, and given the early stage 18 of these proceedings, the preclusion of evidence or witnesses is not available. However, 19 inasmuch as the dismissal being considered in this case is without prejudice, the Court is 20 stopping short of issuing the harshest possible sanction of dismissal with prejudice. 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 24 on plaintiff's failure to obey the Court=s order of August 25, 2014. 25 recommendations are submitted to the United States District Judge assigned to the case, 26 pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty (20) days after being 27 served with these findings and recommendations, Plaintiff may file written objections with the 28 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and 2 These findings and 1 Recommendations." Plaintiff is advised that failure to file objections within the specified time 2 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th 3 Cir. 1991). 4 5 6 7 IT IS SO ORDERED. Dated: November 10, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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