(PC) Wilson v. Price ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEPHEN WILSON, Case No. 1:19-cv-01680-DAD-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE BRANDON PRICE, et al., TO PROSECUTE AND FAILURE TO 13 COMPLY WITH COURT ORDERS Defendants. 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 15 16 Stephen Wilson (“Plaintiff”) is proceeding pro se in this civil rights action filed 17 pursuant to 42 U.S.C. § 1983. 18 Plaintiff filed the complaint commencing this action on December 2, 2019 (ECF No. 1), 19 but did not pay the filing fee or file an application to proceed in forma pauperis. Accordingly, 20 on December 4, 2019, the Court gave Plaintiff forty-five days to either pay the filing fee or 21 submit an application to proceed in forma pauperis. (ECF No. 3). The Court warned Plaintiff 22 that “[f]ailure to comply with this order will result in dismissal of this action.” (Id. at 1). 23 The forty-five-day deadline expired, and Plaintiff failed to pay the filing fee or file an 24 application to proceed in forma pauperis. Accordingly, on March 11, 2020, the Court issued 25 findings and recommendations, recommending that this case be dismissed, without prejudice, 26 because of Plaintiff’s failure to prosecute and failure to comply with a court order. (ECF No. 27 7). 28 On March 23, 2020, Plaintiff objected to the findings and recommendations. (ECF No. 1 8). In light of Plaintiff’s objections, the Court vacated the findings and recommendations, sent 2 Plaintiff a form application to proceed in forma pauperis, and gave Plaintiff thirty days to either 3 complete and return the application or to pay the filing fee. (ECF No. 9). Additionally, the 4 Court warned Plaintiff that: “[i]f Plaintiff wants to proceed with this action, he must submit an 5 application to proceed in forma pauperis or pay the filing fees. Moreover, Plaintiff cannot 6 ignore court orders and deadlines. If Plaintiff is unable to comply with a deadline, he should 7 file a motion for an extension of time.” (Id. at 1-2). The Court also warned Plaintiff that 8 “[f]ailure to comply with this order will result in dismissal of this action.” (Id. at 2). 9 The thirty-day period has expired, and Plaintiff has not filed an application to proceed 10 in forma pauperis, paid the filing fee, or requested an extension of time. Accordingly, the 11 Court will recommend that this case be dismissed, without prejudice, because of Plaintiff’s 12 failure to prosecute and failure to comply with court orders. 13 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 14 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 15 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 16 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 17 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 18 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 19 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 20 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 21 this factor weighs in favor of dismissal. 22 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 23 determine whether the delay in a particular case interferes with docket management and the 24 public interest…. It is incumbent upon the Court to manage its docket without being subject to 25 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Here, Plaintiff’s failure to pay 26 the filing fee or file an application to proceed in forma pauperis, despite being ordered to do so 27 twice, is delaying this case and interfering with docket management. Therefore, the second 28 factor weighs in favor of dismissal. 1 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 2 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 3 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 4 become stale,” id. at 643, and it is Plaintiff's failure to follow this Court’s orders that is causing 5 delay. Therefore, the third factor weighs in favor of dismissal. 6 As for the availability of lesser sanctions, at this stage in the proceedings there is little 7 available to the Court which would constitute a satisfactory lesser sanction while protecting the 8 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 9 incarceration and his failure to pay the filing fee, it appears that monetary sanctions are of little 10 use. And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 11 available. Additionally, because the dismissal being considered in this case is without 12 prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 13 prejudice. 14 Finally, because public policy favors disposition on the merits, this factor weighs 15 against dismissal. Id. 16 After weighing the factors, the Court finds that dismissal without prejudice is 17 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 18 1. This action be dismissed, without prejudice, based on Plaintiff's failure to 19 prosecute and failure to comply with court orders; and 20 2. The Clerk of Court be directed to close this case. 21 These findings and recommendations will be submitted to the United States district 22 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 23 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 24 file written objections with the Court. The document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendations.” 26 /// 27 /// 28 /// 4:40 LYON SOMO I ET AY Tt 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). * IS SO ORDERED. 5 || Dated: _ May 14, 2020 [sl ey UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28