(PC) Saylor v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN E. SAYLOR, 1:21-cv-01282-JLT-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS CASE 13 vs. BE DISMISSED FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDER 14 ALLISON, et al., (ECF No. 16.) 15 Defendants. OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 16 17 18 I. FINDINGS 19 Bryan E. Saylor (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this action on 21 August 24, 2021. (ECF No. 1.) 22 On November 4, 2021, the Court issued an order requiring Plaintiff to pay the $392.75 23 balance of the filing fee owed for this action, in full within thirty days. (ECF No. 16.) The thirty- 24 day time period has now expired and Plaintiff has not made any payment or otherwise responded 25 to 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 August 24, 2021. Plaintiff’s failure to respond to the Court’s order 7 may reflect Plaintiff’s disinterest in prosecuting this case or inability to pay the filing fee. In 8 such an instance, the Court cannot continue to expend its scarce resources assisting a litigant who 9 will not or cannot resolve payment of the filing fee for his lawsuit. 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 action 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 II. RECOMMENDATIONS AND CONCLUSION 26 Accordingly, the Court HEREBY RECOMMENDS that: 27 1. This action be dismissed based on Plaintiff’s failure to obey the Court’s order of 28 November 4, 2021; and 1 2. The Clerk be directed to close this case. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 4 (14) days after the date of service of these findings and recommendations, Plaintiff may file 5 written objections with the court. Such a document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 7 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 8 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 9 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: January 21, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28