(PC) Schowachert v. Santoro ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL FRANK SCHOWACHERT, 1:21-cv-00947-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN DISTRICT JUDGE TO THIS 13 vs. ACTION 14 SANTORO, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 15 Defendants. BE DISMISSED FOR PLAINTIFF’S FAILURE TO COMPLY WITH 16 COURT’S ORDERS (ECF Nos. 5, 6, 7.) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 FOURTEEN (14) DAYS 19 20 I. BACKGROUND 21 John Paul Frank Schowachert (“Plaintiff”) is a state prisoner proceeding pro se in this 22 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this 23 action on May 13, 2021, together with an application to proceed in forma pauperis pursuant to 24 28 U.S.C. § 1915, at the Sacramento Division of the United States District Court for the Eastern 25 District of California. (ECF Nos. 1, 2.) On June 20, 2021, the case was transferred to this court. 26 (ECF No. 4.) 27 On June 17, 2021 and June 28, 2021, the court issued orders requiring Plaintiff to sign 28 and return the court’s form for consent to or decline of Magistrate Judge jurisdiction within thirty 1 days. (ECF Nos. 4, 7.) The thirty-day deadlines have expired and Plaintiff has not returned the 2 consent/decline form, or otherwise responded to the court’s orders. (Court Record.) 3 On June 28, 2021, the court issued an order for Plaintiff to either (1) submit a signed 4 application to proceed in forma pauperis, or (2) pay the $402.00 filing fee in full for this action, 5 within thirty days. (ECF No. 2.) The thirty-day deadline has expired and Plaintiff did not submit 6 a signed application to proceed in forma pauperis, pay the $402.00 filing fee in full, or otherwise 7 respond to the court’s order. (Court Record.) 8 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 9 In determining whether to dismiss this action for failure to comply with the directives set 10 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 14 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 16 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 17 action has been pending since May 13, 2021. Plaintiff’s failure to comply with the court’s orders 18 may reflect his disinterest in prosecuting this case. In such an instance, the court cannot continue 19 to expend its scarce resources assisting a litigant who will not resolve payment of the filing fee 20 for his lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 21 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 22 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 23 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 24 it is Plaintiff's failure to submit a signed application proceed in forma pauperis or pay the $402.00 25 filing fee for this action that is causing delay. Therefore, the third factor weighs in favor of 26 dismissal. 27 As for the availability of lesser sanctions, at this stage in the proceedings there is little 28 available to the court which would constitute a satisfactory lesser sanction while protecting the 1 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 2 prisoner proceeding pro se who has not paid the filing fee for this action, the court finds monetary 3 sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence 4 or witnesses is not available. However, inasmuch as the dismissal being considered in this case 5 is without prejudice, the court is stopping short of issuing the harshest possible sanction of 6 dismissal with prejudice. 7 Finally, because public policy favors disposition on the merits, this factor will always 8 weigh against dismissal. Id. at 643. 9 III. CONCLUSION AND RECOMMENDATIONS 10 The Clerk of Court is HEREBY ORDERED to randomly assign a District Judge to this 11 case. 12 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 13 dismissed, without prejudice, based on Plaintiff’s failure to obey the court’s orders of June 17, 14 2021 and June 28, 2021. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 17 (14) days from the date of service of these findings and recommendations, Plaintiff may file 18 written objections with the court. Such a document should be captioned “Objections to 19 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: August 16, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28