- 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EZELL MOORE, JR., Case No. 1:20-cv-01020-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE HUNT, et al., TO PROSECUTE THIS CASE AND 13 FAILURE TO COMPLY WITH A COURT Defendants. ORDER 14 OBJECTIONS, IF ANY, DUE WITHIN 15 FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 18 Ezell Moore, Jr. (“Plaintiff”), is a prisoner proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the complaint commencing this action on July 23, 2020. (ECF No. 1). 21 Plaintiff filed an application to proceed in forma pauperis (ECF No. 2), but it was not signed as 22 required by Federal Rule of Civil Procedure 11(a) and Local Rule 131(b). Accordingly, on 23 July 28, 2020, the Court gave Plaintiff forty-five days to either pay the filing fee or submit a 24 completed and signed application to proceed in forma pauperis. (ECF No. 4). The Court 25 warned Plaintiff that “[f]ailure to comply with this order will result in dismissal of this 26 action.” (Id. at 1). 27 The forty-five-day deadline has expired, and Plaintiff has not paid the filing fee or filed 28 \\\ 1 a completed and signed application to proceed in forma pauperis.1 Accordingly, the Court will 2 recommend that this case be dismissed, without prejudice, because of Plaintiff’s failure to 3 prosecute and failure to comply with a court order. 4 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 5 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 6 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 9 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 11 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 12 this factor weighs in favor of dismissal. 13 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 14 determine whether the delay in a particular case interferes with docket management and the 15 public interest…. It is incumbent upon the Court to manage its docket without being subject to 16 routine noncompliance of litigants....” Id. Here, Plaintiff’s failure to pay the filing fee or to file 17 a completed and signed application to proceed in forma pauperis, despite being ordered to do so 18 by the Court, is delaying this case and interfering with docket management. Therefore, the 19 second factor weighs in favor of dismissal. 20 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 21 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 22 inherently increases the risk that witnesses’ memories will fade and evidence will become 23 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 24 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 28 1 Plaintiff also failed to respond to the Court’s order regarding consent or decline of magistrate judge jurisdiction (ECF No. 3-1, p. 3). wOoOe VV □□ □□ IN INE SOMME PIO eI EON PY VM VI 1 || Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff's 2 || incarceration and his failure to pay the filing fee, it appears that monetary sanctions are of little 3 |/use. And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 4 |\available. Additionally, because the dismissal being considered in this case is without 5 || prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 6 || prejudice. 7 Finally, because public policy favors disposition on the merits, this factor weighs 8 || against dismissal. Id. 9 After weighing the factors, the Court finds that dismissal without prejudice is 10 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 11 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 12 prosecute this case and failure to comply with a court order; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district 15 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 17 || file written objections with the Court. The document should be captioned “Objections to 18 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 |] objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 || (9th Cir. 1991)). 22 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 23 || judge to this case. IT IS SO ORDERED. 25 |! Dated: _ September 25, 2020 [Je heey —— 26 UNITED STATES MAGISTRATE JUDGE 27 28
Document Info
Docket Number: 1:20-cv-01020
Filed Date: 9/25/2020
Precedential Status: Precedential
Modified Date: 6/19/2024