(PC) Quair v. Quintero ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY R. QUAIR, SR., 1:21-cv-01407-AWI-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, Plaintiff, RECOMMENDING THAT THIS CASE BE 13 DISMISSED, WITHOUT PREJUDICE, FOR vs. PLAINTIFF’S FAILURE TO OBEY COURT 14 ORDER QUINTERO, et al., (ECF No. 8.) 15 Defendants. OBJECTIONS, IF ANY, DUE IN 14 DAYS 16 17 18 Sammy R. Quair, Sr. (“Plaintiff”) is a Kings County Jail inmate proceeding pro se with 19 this civil rights action pursuant to 42 U.S.C. § 1983. On September 22, 2021, Plaintiff filed the 20 Complaint commencing this action. (ECF No. 1.) 21 On October 26, 2021, the court issued an order requiring Plaintiff to pay the $402.00 22 filing fee for this case in full, within thirty days. (ECF No. 8.) The thirty-day time period has 23 now expired, and Plaintiff has not paid the filing fee or otherwise responded to the court’s order. 24 Therefore, it will be recommended that this case be dismissed, without prejudice, for Plaintiff’s 25 failure to comply with the court’s order. 26 In determining whether to dismiss this action for failure to comply with the directives set 27 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 28 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 1 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 2 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 3 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 4 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 5 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 6 action has been pending since September 22, 2021. Plaintiff’s failure to respond to the Court’s 7 order may reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing 8 fee. In such an instance, the Court cannot continue to expend its scarce resources assisting a 9 litigant who will not resolve payment of the filing fee for his case. Thus, both the first and second 10 factors weigh in favor of dismissal. 11 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 12 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 13 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 14 is Plaintiff’s failure to pay the filing fee for this case that is causing delay. Therefore, the third 15 factor weighs in favor of dismissal. 16 As for the availability of lesser sanctions, at this stage in the proceedings there is little 17 available to the Court which would constitute a satisfactory lesser sanction while protecting the 18 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 19 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 20 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 21 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 22 of dismissal with prejudice. 23 Finally, because public policy favors disposition on the merits, this factor will always 24 weigh against dismissal. Id. at 643. 25 Accordingly, IT IS HEREBY RECOMMENDED that this case be dismissed, without 26 prejudice, for Plaintiff’s failure to obey the Court’s order issued on October 26, 2021. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 1 (14) days after the date of service of these findings and recommendations, Plaintiff may file 2 written objections with the court. Such a document should be captioned “Objections to 3 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 4 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 5 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 6 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8 9 Dated: December 17, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28