(PC) Jacobsen v. Curran et al, No. 1:2016cv01050 - Document 94 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS that the Court Dismiss the Case for Plaintiff's Failures to Prosecute and to Comply with Court Orders, signed by Magistrate Judge Jeremy D. Peterson on 3/14/19. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL JACOBSEN, Plaintiff, 10 11 12 13 Case No. 1:16-cv-01050-LJO-JDP FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THE CASE FOR PLAINTIFF’S FAILURES TO PROSECUTE AND TO COMPLY WITH COURT ORDERS v. OFFICER MALDINADO, et al., Defendants. FOURTEEN-DAY DEADLINE 14 15 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 16 under 42 U.S.C. § 1983. On October 26, 2018, defendant Gonzalez moved for summary 17 judgment. ECF No. 90. Plaintiff had twenty-one (21) days to oppose defendant’s motion 18 under Local Rule 230(l), but he failed to do so. See ECF No. 91. 19 On December 12, 2018, the court ordered plaintiff to respond to defendant’s motion 20 within twenty-one days. ECF No. 92. The court warned plaintiff that failure to respond could 21 result in dismissal of the case. Id. Nonetheless, plaintiff again failed to respond to defendant’s 22 motion for summary judgment, thereby disobeying the court’s order. 23 The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply 24 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 25 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court 26 has duties to resolve disputes expeditiously and to avoid needless burden for the parties. See 27 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 28 1 1 In considering whether to dismiss a case for failure to prosecute, a court ordinarily 2 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 3 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 4 policy favoring disposition of cases on their merits and (5) the availability of less drastic 5 sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. 6 Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s 7 inquiry; they are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) 8 Products Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 9 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 11 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 12 dismissal. 13 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 14 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay 15 inherently increases the risk that witnesses’ memories will fade and evidence will become stale, 16 id. at 643, and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the 17 third factor weighs in favor of dismissal. 18 As for the availability of lesser sanctions, at this stage in the proceedings there is little 19 available to the court that would constitute a satisfactory lesser sanction while protecting the 20 court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 21 little use, considering plaintiff’s incarceration and apparent inability to pay the filing fee, and— 22 given the stage of these proceedings—the preclusion of evidence or witnesses is not available. 23 Accordingly, the fourth factor also weighs in favor of dismissal. 24 Finally, because public policy favors disposition on the merits, this factor weighs 25 against dismissal. Id. 26 After weighing the factors, including the court’s need to manage its docket, the court 27 finds that dismissal is appropriate. The court recommends dismissal without prejudice. 28 2 FINDINGS AND RECOMMENDATIONS 1 The court recommends that the case be dismissed for plaintiff’s failures to prosecute or 2 3 comply with court orders. The undersigned submits these findings and recommendations to the U.S. district judge 4 5 presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen 6 days of the service of the findings and recommendations, the parties may file written objections 7 to the findings and recommendations with the court and serve a copy on all parties. The 8 document containing the objections must be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” The presiding district judge will then review the findings 10 and recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections 11 within the specified time may waive their rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 12 834, 839 (9th Cir. 2014). 13 14 IT IS SO ORDERED. 15 Dated: March 14, 2019 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 No. 203 20 21 22 23 24 25 26 27 28 3

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