(PC) Brys v. Stanislaus County Sheriffs Department ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER L. BRYS, 1:19-cv-00838-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S 13 vs. FAILURE TO OBEY COURT ORDER (ECF No. 20.) 14 GONZALES, et al., OBJECTIONS, IF ANY, DUE IN 15 Defendants. FOURTEEN (14) DAYS 16 17 18 19 On May 3, 2021, the court issued an order requiring Plaintiff to complete and submit the 20 forms for initiating service of process on defendant Deputy Gonzales, and to do so within thirty 21 days. (ECF No. 20.) The thirty-day time period has now expired and Plaintiff has not submitted 22 the service documents to the court or otherwise responded to the court’s order. 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 June 18, 2019. 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 return documents to the 6 court needed to serve process in his case. Thus, both the first and second factors weigh in favor 7 of dismissal. 8 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 9 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 10 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 11 is Plaintiff's failure to submit the service documents 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. Given that Plaintiff is 16 proceeding in forma pauperis in this action, the court finds monetary sanctions of little use, and 17 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 18 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 19 the court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 20 Finally, because public policy favors disposition on the merits, this factor will always 21 weigh against dismissal. Id. at 643. 22 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based 23 on Plaintiff’s failure to obey the court’s order issued on May 3. 2021. These findings and 24 recommendations are submitted to the United States District Judge assigned to the case, pursuant 25 to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days from the date of 26 service of 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 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)). In the alternative, 3 instead of filing objections, Plaintiff may submit the service documents, completed and signed, 4 which will resolve this matter. 5 IT IS SO ORDERED. 6 7 Dated: July 6, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28