United States District Court, E.D. California
THOMAS L. GOFF, Plaintiff,
GAMEZ, et al., Defendants.
ORDER DISMISSING CASE FOR FAILURE TO
Goff (“Plaintiff”) is a former state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. §
1983. For the reasons described below, the Court will dismiss
this case for failure to prosecute.
case was dismissed on January 11, 2017, for failure to
prosecute and failure to obey the Local Rules. (ECF No. 12).
The case was reopened on December 4, 2017, in part because
reopening the case “serve[d] the interest of judicial
economy. Plaintiff's case was dismissed without
prejudice, so he could simply re-file it. If he did refile
his complaint, his complaint would need to be screened under
28 U.S.C. § 1915A(a). In this case Plaintiff's
complaint has already been screened.” (ECF No. 26, p.
September 7, 2018, the Court issued an order setting an
initial scheduling conference for December 17, 2018,
requiring the parties to exchange initial disclosures, and
requiring the parties to file scheduling conference
statements. (ECF No. 46).
Court attempted to hold the initial scheduling conference on
December 17, 2018, but Plaintiff failed to appear. Plaintiff
also served his initial disclosures almost two months late
(ECF No. 52, p. 5), and failed to file his scheduling
December 18, 2018, the assigned magistrate judge issued
findings and recommendations, recommending that
Plaintiff's case be dismissed for failure to prosecute
and failure to comply with a court order. (ECF No. 54). The
undersigned declined to adopt the findings and
recommendations, but warned Plaintiff that “any further
disobedience of court orders or the Local Rules, or any
further failures in the prosecution of this matter, may be
grounds for sanctions, including the possible dismissal and
closure of this case.” (ECF No. 70, p. 3).
October 21, 2019, Plaintiff failed to appear at a telephonic
pre-settlement conference hearing. (ECF No. 85). On October
23, 2019, the Court issued an order for Plaintiff to show
cause, by filing a written response, why this case should not
be dismissed for failure to prosecute. (ECF No. 86).
Plaintiff's written response was due no later than
November 6, 2019, at 5:00 p.m. (Id. at 2). Plaintiff
did not file a written response to the order.
Court will dismiss Plaintiff's case for failure to
prosecute because of Plaintiff's repeated failure to
prosecute this case.
determining whether to dismiss a[n] [action] for failure to
prosecute or failure to comply with a court 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.
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)). Accordingly, this factor weighs in favor of
the Court's need to manage its docket, “[t]he trial
judge is in the best position to determine whether the delay
in a particular case interferes with docket management and
the public interest…. It is incumbent upon the Court
to manage its docket without being subject to routine
noncompliance of litigants....” Pagtalunan,
291 at 639. As described above, Plaintiff has repeatedly
failed to prosecute this case. This repeated failure is
consuming the Court's limited time. Therefore, the second
factor weighs in favor of dismissal.
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Id at 642 (citing
Yourish, 191 F.3d at 991). However,
“[unnecessary delay inherently increases the risk that
witnesses' memories will fade and evidence will become
stale, ” id at 643, and, as described above,
it is Plaintiffs repeated failure to prosecute this case that
is causing unnecessary delay. This case is over four years
old and no schedule has been set. Therefore, the third factor
weighs in favor of dismissal.
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. Monetary sanctions are of little use,
considering Plaintiffs in forma pauperis status, ...