(PC) Brandstatt v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM H. BRANDSTATT, 1:21-cv-01600-GSA (PC) 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 CLARK, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 16 OBEY COURT ORDER (ECF No. 2.) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 FOURTEEN (14) DAYS 19 20 21 22 I. BACKGROUND 23 Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 24 1983. On November 3, 2021, the court issued an order requiring Plaintiff to submit an application 25 to proceed in forma pauperis, or pay the $402.00 filing fee for this action, within thirty days. 26 (ECF No. 2.) The thirty-day time period has now expired, and Plaintiff has not filed a completed 27 application to proceed in forma pauperis or paid the filing fee for this action. Therefore, Plaintiff 28 failed to comply with the court’s November 3, 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 October 1, 2021. Plaintiff’s failure to comply with the court’s 11 order may be the result of oversight by Plaintiff. However, the court cannot continue to expend 12 its scarce resources assisting a litigant who will not resolve payment of the filing fee for his 13 lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 14 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 15 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 16 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 17 it is Plaintiff's failure to pay the filing fee or submit a completed application to proceed in forma 18 pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal. 19 As for the availability of lesser sanctions, at this stage in the proceedings there is little 20 available to the court which would constitute a satisfactory lesser sanction while protecting the 21 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 22 prisoner proceeding pro se who has not paid the filing fee for this action, the court finds monetary 23 sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence 24 or witnesses is not available. However, inasmuch as the dismissal being considered in this case 25 is without prejudice, the court is stopping short of issuing the harshest possible sanction of 26 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. ORDER TO ASSIGN A DISTRICT JUDGE TO THIS CASE 2 The Clerk of Court is directed to randomly assign a district judge to this case. 3 IV. CONCLUSION AND RECOMMENDATIONS 4 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 5 dismissed without prejudice based on Plaintiff’s failure to obey the court’s order issued on 6 November 3, 2021. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days from the date of service of these findings and recommendations, Plaintiff may file 10 written objections with the court. Such a document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 13 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: January 4, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28