(PC) Hammler v. Compose ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 1:19-cv-01149-DAD-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, 13 Plaintiff, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT 14 vs. PREJUDICE, FOR PLAINTIFF’S FAILURE TO PAY THE FILING FEE AS 15 COMPOSE, et al., ORDERED (ECF No. 10.) 16 Defendants. OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 18 19 20 21 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 22 action pursuant to 42 U.S.C. § 1983. On August 23, 2019, Plaintiff filed the Complaint 23 commencing this action. (ECF No. 1.) 24 On December 18, 2019, the court issued an order denying Plaintiff leave to proceed in 25 forma pauperis under 28 U.S.C. § 1915(g) and requiring Plaintiff to pay the $400.00 filing fee 26 in full for this action within thirty days of the date of service of the order. (ECF No. 10.) The 27 thirty-day deadline has now passed and Plaintiff has not paid the filing fee or otherwise responded 28 to the order. 1 In determining whether to dismiss this action for failure to prosecute or failure to comply 2 with the directives set forth in its order, “the Court must weigh the following factors: (1) the 3 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 4 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; 5 and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 6 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 1992) (failure to comply with court orders). see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 8 1994) (failure to prosecute). 9 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 10 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 11 action has been pending since August 23, 2019. Plaintiff’s failure to respond to the court’s order 12 may reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing fee. In 13 such an instance, the court cannot continue to expend its scarce resources assisting a litigant who 14 will not or cannot resolve payment of the filing fee for his lawsuit. Thus, both the first and second 15 factors weigh in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 18 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 19 is Plaintiff’s failure to pay the filing fee for this action that is causing delay. Therefore, the third 20 factor weighs in favor of dismissal. 21 As for the availability of lesser sanctions, at this stage in the proceedings there is little 22 available to the court which would constitute a satisfactory lesser sanction while protecting the 23 court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 24 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 25 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 26 this case is without prejudice, the court is stopping short of issuing the harshest possible sanction 27 of dismissal with prejudice. 28 /// 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed without 4 prejudice based on Plaintiff’s failure to pay the filing fee for this case pursuant to the court’s 5 order of December 18, 2019. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 8 (14) days after the date of service of these findings and recommendations, Plaintiff may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: February 7, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28