(PC) Dustin v. Gipson et al, No. 1:2014cv01405 - Document 28 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED based on Plaintiff's failure to obey the Court's order of August 20, 2015. re 1 Complaint; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 10/8/15. Objections to F&R due by 11/12/2015 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DALE OWEN DUSTIN, 12 Plaintiff, 13 14 vs. 1:14-cv-01405-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER (ECF No. 27.) C. GIPSON, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS 16 17 18 19 On August 20, 2015, the court issued an order requiring Plaintiff to file a First 20 Amended Complaint within thirty days. (ECF No. 27.) The thirty day period has now expired, 21 and Plaintiff has not filed a First Amended Complaint or otherwise responded to the court's 22 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 June 25, 2014. 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 complying with the court’s order to amend his complaint. Thus, both the first and second 7 factors 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 file the First Amended Complaint that is causing delay. Therefore, the 12 third 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 is proceeding in 16 forma pauperis in this action, making monetary sanctions of little use, and given the early stage 17 of these proceedings, the preclusion of evidence or witnesses is not available. However, 18 inasmuch as the dismissal being considered in this case is without prejudice, the court is 19 stopping short of issuing the harshest possible sanction of dismissal with prejudice. 20 21 22 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 23 on Plaintiff's failure to obey the court=s order of August 20, 2015. 24 recommendations are submitted to the United States District Judge assigned to the case, 25 pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty (30) days after being 26 served with these findings and recommendations, Plaintiff may file written objections with the 27 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and 28 Recommendations." Plaintiff is advised that failure to file objections within the specified time 2 These findings and 1 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th 2 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 6 IT IS SO ORDERED. Dated: October 8, 2015 /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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