(PC) Gonzalez v. Golleher ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 NESTOR GABRIEL GONZALEZ, 1:19-cv-00506-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITHOUT PREJUDICE, 13 v. FOR FAILURE TO OBEY COURT ORDER (ECF No. 6.) 14 CAPTAIN C. GOLLEHER, et al., OBJECTIONS, IF ANY, DUE IN FOURTEEN 15 Defendants. (14) DAYS 16 17 18 On July 28, 2020, the Court issued an order requiring Plaintiff to either file an amended 19 complaint or notify the court that he is willing to proceed only on the following CLAIMS: 1- 20 equal protection, First Amendment, and RLUIPA claims against defendants Golleher, Mastel, S. 21 Johnson, and R. Johnson; and, 2-the retaliation claim against defendant Golleher, all found 22 cognizable by the Court, and to do so within thirty days. (ECF No. 6.) The thirty-day time period 23 has now expired, and Plaintiff has not filed an amended complaint, notified the court of his 24 willingness to proceed, or otherwise responded to the Court’s order. 25 In determining whether to dismiss this action for failure to comply with the directives set 26 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 27 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 28 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 1 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 2 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 3 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 4 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 5 action has been pending since April 19, 2019. Plaintiff’s failure to respond to the Court’s order 6 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 7 continue to expend its scarce resources assisting a litigant who will not file an amended complaint 8 or notify the court of his willingness to proceed, in compliance with the Court’s order. Thus, 9 both the first and second factors weigh in favor of dismissal. 10 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 11 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 12 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 13 is Plaintiff’s failure to file an amended complaint or notify the court of his willingness to proceed 14 that is causing delay. Therefore, the third factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, at this stage in the proceedings there is little 16 available to the Court which would constitute a satisfactory lesser sanction while protecting the 17 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 18 prisoner proceeding pro se and in forma pauperis, the Court finds monetary sanctions of little 19 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not 20 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 21 the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 22 Finally, because public policy favors disposition on the merits, this factor will always 23 weigh against dismissal. Id. at 643. 24 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, 25 without prejudice, based on Plaintiff’s failure to obey the Court’s order of July 28, 2020. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 28 (14) days after being served with these findings and recommendations, Plaintiff may file written 1 objections with the Court. Such a document should be captioned “Objections to Magistrate 2 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 3 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 4 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 5 1991)). 6 IT IS SO ORDERED. 7 8 Dated: September 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28