(PC) Houston v. North Kern State Prison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY XAVIER HOUSTON, 1:21-cv-00953-GSA-PC 12 Plaintiff, ORDER FOR THE CLERK OF COURT TO RANDOMLY ASSIGN A UNITED 13 vs. STATES DISTRICT JUDGE TO THIS ACTION 14 NORTH KERN STATE PRISON, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. TO DISMISS CASE, WITHOUT PREJUDICE, FOR FAILURE TO OBEY 16 COURT ORDER (ECF No. 4.) 17 OBJECTIONS, IF ANY, DUE IN 18 FOURTEEN (14) DAYS 19 20 21 22 23 Tony Xavier Houston (“Plaintiff”) is a state prisoner proceeding pro se with this civil 24 rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this 25 action on June 17, 2021, together with a request to waive court fees. (ECF Nos. 1, 2.) 26 On June 28, 2021, the court issued an order requiring Plaintiff to either submit an 27 application to proceed in forma pauperis on the court’s form, or pay the $402.00 filing fee for 28 this action, within thirty days. (ECF No. 4.) The thirty-day time period has now expired, and 1 Plaintiff has not paid the filing fee, submitted a new application to proceed in forma pauperis, or 2 otherwise responded to the court’s order. Therefore, it will be recommended that this case be 3 dismissed for Plaintiff’s failure to comply with the court’s order. The Clerk shall be directed to 4 randomly assign a United States District Judge to this action. 5 In determining whether to dismiss this action for failure to comply with the directives set 6 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 9 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 10 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 11 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 12 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 13 action has been pending since June 17, 2021. Plaintiff’s failure to respond to the Court’s order 14 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 15 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 16 orders. Thus, both the first and second factors weigh in favor of dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 19 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 20 is Plaintiff’s failure to resolve payment of the filing fee for his lawsuit that is causing delay. 21 Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the Court which would constitute a satisfactory lesser sanction while protecting the 24 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 25 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 26 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 27 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 28 of dismissal with prejudice. 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Clerk of Court shall randomly assign a United States District Judge to this 5 action; and 6 2. The Court HEREBY RECOMMENDS that: 7 (1) This action be dismissed, without prejudice, based on Plaintiff’s failure to 8 obey the Court’s order issued on June 28, 2021; and 9 (2) The Clerk be directed to close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days after the date of service of these findings and recommendations, Plaintiff may file 13 written objections with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: August 27, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28