(PC) Chacon v. Cerrini, et al., No. 1:2011cv01689 - Document 56 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order 53 , signed by Magistrate Judge Gary S. Austin on 12/17/14. Referred to Judge Ishii; 21-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDIN A. CHACON, 12 13 14 15 Plaintiff, vs. 1:11-cv-01689-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER (Doc. 53.) J. CERRINI, et al., Defendants. OBJECTIONS, IF ANY, DUE WITHIN TWENTY (20) DAYS 16 17 18 19 On November 6, 2014, the Court issued an order requiring Plaintiff to file a response to 20 Defendants' motion for summary judgment of August 15, 2014, within thirty days. (Doc. 53.) 21 The thirty day period has now expired, and Plaintiff has not filed a response to the motion or 22 otherwise responded to 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 January 10, 2011. Plaintiff's failure to respond to the Court's 4 order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court 5 cannot continue to expend its scarce resources assisting a litigant who will not help himself by 6 defending his lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 8 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 9 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 10 is Plaintiff's failure to respond to Defendants’ motion for summary judgment that is causing 11 delay. Therefore, the third factor weighs in favor of dismissal. 12 As for the availability of lesser sanctions, at this stage in the proceedings there is little 13 available to the Court which would constitute a satisfactory lesser sanction while protecting the 14 Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in 15 forma pauperis in this action, making monetary sanctions of little use, and given the early stage 16 of these proceedings, the preclusion of evidence or witnesses is not available. However, 17 inasmuch as the dismissal being considered in this case is without prejudice, the Court is 18 stopping short of issuing the harshest possible sanction of dismissal with prejudice. 19 20 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 21 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based 22 on plaintiff's failure to obey the court=s order of November 6, 2014. These findings and 23 recommendations are submitted to the United States District Judge assigned to the case, 24 pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty (20) days after being 25 served with these findings and recommendations, any party may file written objections with the 26 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and 27 Recommendations." The parties are advised that failure to file objections within the specified 28 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 2 1 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 2 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: December 17, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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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