(PC) Fleming v. CDCR-CCWF ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STARLINA FLEMING, 1:20-cv-00710-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 13 vs. OBEY COURT ORDER (ECF No. 7.) 14 CDCR-CCWF, et al., OBJECTIONS, IF ANY, DUE WITHIN 15 Defendants. FOURTEEN (14) DAYS 16 17 18 19 20 I. BACKGROUND 21 Starlina Fleming (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 22 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 23 May 21, 2020, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. 24 § 1915. (ECF Nos. 1, 2.) Plaintiff’s application to proceed in forma pauperis was not completed. 25 (ECF No. 2.) 26 On page 2 of the application, Plaintiff answered “Yes” to question 3-e: “Have you 27 received any money from the following sources over the last twelve months? However, Plaintiff 28 did not respond to the second part of the question: “If the answer to any of the above is “yes,” 1 describe by that item each source of money. Also state the amount received and what you expect 2 you will continue to receive (attach an additional sheet if necessary).” 3 On May 29, 2020, the court issued an order requiring Plaintiff to submit a new completed 4 application to proceed in forma pauperis, or pay the filing fee for this action, within thirty days. 5 (ECF No. 7.) The thirty-day time period has now expired and Plaintiff has neither filed a 6 completed application to proceed in forma pauperis nor paid the filing fee for this action. 7 Therefore, Plaintiff failed to comply with the court’s May 29, 2020 order. 8 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 9 In determining whether to dismiss this action for failure to comply with the directives set 10 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 14 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 16 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 17 action has been pending since May 21, 2020. Plaintiff’s failure to comply with the court’s order 18 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court cannot 19 continue to expend its scarce resources assisting a litigant who will not resolve payment of the 20 filing fee for her lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 21 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 22 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 23 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 24 it is Plaintiff's failure to pay the filing fee or submit a completed application to proceed in forma 25 pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal. 26 As for the availability of lesser sanctions, at this stage in the proceedings there is little 27 available to the court which would constitute a satisfactory lesser sanction while protecting the 28 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 1 prisoner proceeding pro se who has not paid the filing fee for this action, the court finds monetary 2 sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence 3 or witnesses is not available. However, inasmuch as the dismissal being considered in this case 4 is without prejudice, the court is stopping short of issuing the harshest possible sanction of 5 dismissal with prejudice. 6 Finally, because public policy favors disposition on the merits, this factor will always 7 weigh against dismissal. Id. at 643. 8 III. CONCLUSION AND RECOMMENDATIONS 9 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 10 dismissed based on Plaintiff’s failure to obey the court’s order of May 29, 2020. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days from the date of service of these findings and recommendations, Plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: July 23, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28