(PC) Dillingham v. Garcia ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DILLINGHAM, 1:20-cv-01210-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 13 vs. OBEY COURT ORDERS (ECF Nos. 2, 6.) 14 F. GARCIA, et al., OBJECTIONS, IF ANY, DUE IN 15 Defendants. FOURTEEN (14) DAYS 16 17 18 19 On August 7, 2020, and February 1, 2021, the court issued order requiring Plaintiff to 20 complete the court’s form, indicating whether he consents to or declines Magistrate Judge 21 jurisdiction and return the form to the court within thirty days. (ECF Nos. 2, 6.) The thirty-day 22 time periods have now expired and Plaintiff has not returned the court’s consent/decline form. 23 In determining whether to dismiss this action for failure to comply with the directives set 24 forth in its order, “the 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 639, 28 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 1 “‘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 August 2020. Plaintiff’s failure to respond to the court’s orders 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 respond to court orders. 6 Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 8 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 9 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 10 is Plaintiff's failure to submit the court’s consent/decline form that is causing delay. Therefore, 11 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. Given that Plaintiff is 15 proceeding in forma pauperis in this action, the court finds monetary sanctions of little use, and 16 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 17 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 18 the court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 19 Finally, because public policy favors disposition on the merits, this factor will always 20 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 orders issued on August 27, 2020, and February 1, 2021. 23 These findings and recommendations are submitted to the United States District Judge assigned 24 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days 25 after being served with these findings and recommendations, Plaintiff may file written objections 26 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 28 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 1 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). In the 2 alternative, instead of filing objections, Plaintiff may submit the court’s consent/decline form, 3 completed and signed, which will resolve this matter. 4 IT IS SO ORDERED. 5 6 Dated: April 8, 2021 /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