(PC) Martinez v. Ornelas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, 1:22-cv-00909-ADA-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO 14 ORNELAS, et al., COMPLY WITH COURT’S ORDER, FAILURE TO PAY THE FILING FEE, 15 Defendants. AND FAILURE TO PROSECUTE 16 (ECF No. 8.) 17 OBJECTIONS, IF ANY, DUE IN 14 DAYS 18 19 20 21 22 Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 23 action pursuant to 42 U.S.C. § 1983. On July 22, 2022, Plaintiff filed the Complaint commencing 24 this action. (ECF No. 1.) 25 On September 23, 2022, the court issued an order denying Plaintiff’s motion to proceed 26 in forma pauperis under 28 U.S.C. § 1915(g) and requiring Plaintiff to pay the $402.00 filing fee 27 for this action in full within thirty days. (ECF No. 8.) The thirty-day time period has now expired 28 and Plaintiff has not paid the filing fee or otherwise responded to the court’s order. In determining 1 whether to dismiss this action for failure to prosecute or failure to comply with the directives set 2 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 5 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 6 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (failure 7 to comply with court orders). see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 8 prosecute). 9 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 10 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 11 action has been pending since July 22, 2022. Plaintiff’s failure to respond to the court’s order 12 may reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing fee. In 13 such an instance, the court cannot continue to expend its scarce resources assisting a litigant who 14 will not or cannot resolve payment of the filing fee for his lawsuit. Thus, both the first and second 15 factors weigh in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 18 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 19 is Plaintiff’s failure to pay the filing fee for this action that is causing delay. Therefore, the third 20 factor weighs in favor of dismissal. 21 As for the availability of lesser sanctions, at this stage in the proceedings there is little 22 available to the court which would constitute a satisfactory lesser sanction while protecting the 23 court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 24 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 25 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 26 this case is without prejudice, the court is stopping short of issuing the harshest possible sanction 27 of dismissal with prejudice. 28 /// 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed without 4 prejudice based on Plaintiff’s failure to obey the court’s order of September 23, 2022, failure to 5 pay the filing fee, and failure to prosecute. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 8 (14) days after the date of service of these findings and recommendations, Plaintiff may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: October 13, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28