(PC) White v. Pfeiffer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY WHITE, 1:19-cv-01786-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 vs. DISMISSED FOR FAILURE TO OBEY A COURT ORDER, FAILURE TO STATE A 14 PFEIFFER, et al., CLAIM, AND FAILURE TO PROSECUTE (ECF No. 10.) 15 Defendants. OBJECTIONS, IF ANY DUE WITHIN 16 FOURTEEN DAYS 17 18 19 20 I. BACKGROUND 21 Bobby White (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On December 23, 2019, Plaintiff filed 23 the Complaint commencing this action. (ECF No. 1.) 24 On February 25, 2021, the court screened the Complaint and issued an order dismissing 25 the Complaint for failure to state a claim, with leave to amend. (ECF No. 10.) Plaintiff requested 26 and was granted two 60-day extensions of time to file an amended complaint. (ECF Nos. 12, 15, 27 17, 18.) The 60-day time periods have now expired and Plaintiff has not filed an amended 28 complaint. Therefore, Plaintiff failed to comply with the court’s February 25, 2021 order. 1 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 2 In determining whether to dismiss this action for failure to comply with the directives set 3 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 4 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 7 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 9 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 10 action has been pending since December 23, 2019. Plaintiff’s failure to comply with the court’s 11 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court 12 cannot continue to expend its scarce resources assisting a litigant who will not resolve payment 13 of the filing fee for her lawsuit. Thus, both the first and second factors weigh in favor of 14 dismissal. 15 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 16 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 17 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 18 it is Plaintiff's failure to pay the filing fee or submit a completed application to proceed in forma 19 pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal. 20 As for the availability of lesser sanctions, at this stage in the proceedings there is little 21 available to the court which would constitute a satisfactory lesser sanction while protecting the 22 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 23 prisoner proceeding pro se and in forma pauperis, the court finds monetary sanctions of little 24 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not 25 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 26 the court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 27 Finally, because public policy favors disposition on the merits, this factor will always 28 weigh against dismissal. Id. at 643. 1 III. CONCLUSION AND RECOMMENDATIONS 2 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 3 dismissed based on Plaintiff’s failure to obey the court’s order of February 25, 2021, failure to 4 state a claim, and failure to prosecute. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days from the date of service of these findings and recommendations, Plaintiff may file 8 written objections with the court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 11 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 12 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14 15 Dated: August 27, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28