-GSA (PC) Qurumoorthy v. Six Unknown Names Agents et al, No. 1:2011cv00930 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED based on Plaintiff's failure to obey the Court's order of June 13, 2011; re 1 Prisoner Civil Rights Complaint filed by Natarajan Gurumoorthy ; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 08/04/2011. Objections to F&R due by 9/9/2011 (Martin-Gill, S)
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-GSA (PC) Qurumoorthy v. Six Unknown Names Agents et al Doc. 6 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 NATURAJAN GURUMOORTHY, ) ) Plaintiff, ) ) vs. ) ) SIX UNKNOWN NAMES AGENTS, et al., ) ) Defendants. ) ) 1:11-cv-00930-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 3.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 12 13 On June 13, 2011, the Court issued an order striking Plaintiff's unsigned complaint and requiring 14 Plaintiff to submit a signed complaint, together with an application to proceed in forma pauperis or the 15 filing fee for this action, within thirty (30) days. The thirty (30) day period has now expired, and 16 Plaintiff has not filed a signed complaint, submitted an application to proceed in forma pauperis, paid 17 the filing fee, or otherwise responded to the Court's order. 18 In determining whether to dismiss this action for failure to comply with the directives set forth 19 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 20 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 21 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 22 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 23 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 24 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 25 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 26 been pending since June 6, 2011. Plaintiff's failure to respond to the Court's order may reflect Plaintiff's 27 disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend its scarce 28 1 Dockets.Justia.com 1 resources assisting a litigant who will not help himself by filing a valid complaint to enable his lawsuit 2 to proceed. Thus, both the first and second factors weigh in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 4 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 5 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to file 6 a signed complaint in the first instance and to respond to the Court's order in the second instance that 7 is causing delay. Therefore, the third factor weighs in favor of dismissal. 8 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 9 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 10 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee for this action, 11 demonstrating the likelihood that Plaintiff is indigent, which would make monetary sanctions of little 12 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not 13 available. However, inasmuch as the dismissal being considered in this case is without prejudice, the 14 Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 15 16 17 18 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 obey the Court’s order of June 13, 2011. 19 These findings and recommendations are submitted to the United States District Judge assigned 20 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 21 served with these findings and recommendations, Plaintiff may file written objections with the Court. 22 Such a document should be captioned "Objections to Magistrate Judge's Findings and 23 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 24 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 Dated: 28 August 4, 2011 /s/ Gary S. Austin 2 1 6i0kij UNITED STATES MAGISTRATE JUDGE 2 3 4 5 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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