(PC) Johnson v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama, No. 1:2013cv01766 - Document 4 (E.D. Cal. 2013)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Plaintiff's Failure to Comply With Court Order, signed by Magistrate Judge Gary S. Austin on 12/20/2013, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BERTRAM COLIN JOHNSON, 12 Plaintiff, 13 14 15 vs. SIX UNKNOWN NAMES AGENTS, et al., Defendants. 16 1:13-cv-01766-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER (Doc. 3) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 On November 6, 2013, the court issued an order requiring Plaintiff to file a signed 18 complaint, and either submit an application to proceed in forma pauperis or pay the filing fee 19 for this action, within thirty days. (Doc. 3.) The thirty day time period has expired, and 20 Plaintiff has not filed a signed complaint, paid the filing fee, submitted an application, or 21 otherwise responded to the court's order. 22 In determining whether to dismiss this action for failure to comply with the directives 23 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 24 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 25 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 26 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 27 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 28 /// 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 November 2013. Plaintiff's failure to respond to the court's order 4 may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the court cannot 5 continue to expend its scarce resources assisting a litigant who will not help himself by 6 returning the court’s form pursuant to the court’s orders. 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 the court's order that is causing delay. Therefore, the third 12 factor weighs in favor of dismissal. 13 As for the availability of lesser sanctions, at this stage in 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 has not paid the 16 filing fee for this action, making it likely that monetary sanctions are of little use, and given the 17 early stage of these proceedings, the preclusion of evidence or witnesses is not available. 18 However, inasmuch as the dismissal being considered in this case is without prejudice, the 19 Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 20 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 without prejudice, based on Plaintiff's failure to obey the court=s order of November 6, 2013. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 26 days after being served with these findings and recommendations, plaintiff may file written 27 objections with the court. Such a document should be captioned "Objections to Magistrate 28 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 2 1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: 7 8 9 December 20, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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