Opinion
1:15-cv-01567-LJO-GSA-PC
02-16-2018
JEFF ELIAS, Plaintiff, v. VAZRICK NAVASARTIAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, BASED ON PLAINTIFF'S FAILURE TO COMPLY WITH COURT ORDER
(ECF No. 51.) OBJECTIONS, IF ANY, DUE WITHIN 14 DAY
I. BACKGROUND
Jeff Elias ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's original Complaint filed on October 14, 2015, against defendant J. Dubiel (D.D.S.) on Plaintiff's medical claims under the Eighth Amendment and related state law claims. (ECF No. 1.)
On January 17, 2018, the court issued an order requiring Plaintiff to file an opposition or statement of non-opposition to defendant Dubiel's motion for summary judgment, due within twenty-one days. (ECF No. 51.) The twenty-one-day deadline has now expired and Plaintiff has not filed any response to defendant Dubiel's motion for summary judgment.
II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER
In determining whether to dismiss this action for failure to comply with the directives set forth in its order, "the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
"'The public's interest in expeditious resolution of litigation always favors dismissal,'" id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has been pending since October 14, 2015. Plaintiff's failure to comply with the court's order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the court cannot continue to expend its scarce resources assisting a litigant who will not defend against Defendant's motion for summary judgment. Thus, both the first and second factors weigh in favor of dismissal.
Turning to the risk of prejudice, "pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal." Id. (citing Yourish at 991). However, "delay inherently increases the risk that witnesses' memories will fade and evidence will become stale," id., and it is Plaintiff's failure to respond to Defendant's motion for summary judgment that is causing delay. Therefore, the third factor weighs in favor of dismissal.
As for the availability of lesser sanctions, at this stage in the proceedings there is little available to the court which would constitute a satisfactory lesser sanction while protecting the court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a prisoner proceeding pro se and in forma pauperis in this action, the court finds monetary sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this case is without prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. ///
Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643.
III. CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the court HEREBY RECOMMENDS that this case be dismissed, without prejudice, based on Plaintiff's failure to comply with the court's order of January 17, 2018.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days from the date of service of these findings and recommendations, Plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: February 16 , 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE