(PC) Green v. State of California ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 VICTORIA GREEN, 1:23-cv-00973-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 v. RECOMMENDING THAT THIS ACTION BE DISMISSED, WITHOUT PREJUDICE, FOR 12 STATE OF CALIFORNIA, et al. FAILURE TO COMPLY WITH COURT 13 Defendants. ORDERS AND TO PROSECUTE THIS CASE 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 15 16 17 Plaintiff Victoria Green proceeds with counsel in this civil rights lawsuit filed pursuant to 18 42 U.S.C. § 1983. Because Plaintiff has failed to comply with three orders to file an application to 19 proceed in forma pauperis (IFP) or pay the $402 filing fee, the Court will recommend that this 20 case be dismissed without prejudice for failure to comply with the Court’s orders and to prosecute 21 this case. (ECF Nos. 5, 8, 10). 22 I. BACKGROUND 23 This civil rights action under 42 U.S.C. § 1983 was filed by six state prisoners. (ECF Nos. 24 1, 2). However, on June 29, 2023, United States Magistrate Judge Gary S. Austin issued an order, 25 concluding that the Plaintiffs could not proceed together in a single action and ordering (1) the 26 Clerk to open a new case so that each Plaintiff could proceed individually; (2) the Clerk to 27 randomly assign each new case to a Magistrate Judge; (3) the Clerk to file each Plaintiff’s in forma pauperis (IFP) application in the appropriate case; and (4) for each Plaintiff to file a new 28 1 amended complaint or notice of voluntary dismissal within forty-five days. (ECF No. 1). 2 This order led to the undersigned being assigned to the instant case involving Plaintiff 3 Victoria Green. While the Clerk filed an IFP application on this case’s docket (ECF No. 3), that 4 IFP application relates to a different Plaintiff, Charlene Stith, who now proceeds individually in a separate case, 1:23-cv-00947-ADA-GSA. Moreover, it does not appear that Victoria Green ever 5 filed an IFP application in the original case; rather, it appears that Charlene Stith mistakenly filed 6 two IFP applications. (ECF Nos. 4, 8 - 1:23-cv-00947-ADA-GSA). 7 Based on these circumstances, the Court issued an order on June 30, 2023, ordering 8 Plaintiff to submit an IFP application or pay the filing fee within 45 days. (ECF No. 5). After 9 Plaintiff failed to do so, the Court issued another order on August 18, 2023, granting Plaintiff a 10 sua sponte extension to August 28, 2023, to submit an IFP application or pay the filing fee. (ECF 11 No. 8). After Plaintiff again failed to do so, the Court issued a minute order on August 29, 2023, 12 granting Plaintiff another sua sponte extension to September 6, 2023, to submit an IFP 13 application or pay the filing fee. (ECF No. 10). However, Plaintiff has still failed to file an IFP 14 application or pay the filing fee. Notably, in each of its three orders, the Court warned Plaintiff 15 that failure to comply with the order could result in dismissal of this action. (ECF Nos. 5, 8, 10). 16 II. ANALYSIS 17 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 18 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 19 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 20 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 21 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 22 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 23 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 24 factor weighs in favor of dismissal. 25 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 26 determine whether the delay in a particular case interferes with docket management and the 27 public interest. . . . It is incumbent upon the Court to manage its docket without being subject to 28 1 routine noncompliance of litigants. . . .” Id. Plaintiff has failed to file a completed in forma 2 pauperis application or otherwise pay the filing fee. This failure is delaying this case and 3 interfering with docket management. Therefore, the second factor weighs in favor of dismissal. 4 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 5 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 6 id. at 643, and it is Plaintiff’s failure to file an IFP application or otherwise pay the filing fee that 7 is causing delay and preventing this case from progressing. The Court is unable to proceed unless 8 Plaintiff is granted in forma pauperis status or pays the filing fee. Therefore, the third factor 9 weighs in favor of dismissal. 10 As for the availability of lesser sanctions, given that Plaintiff has failed to comply with 11 three Court orders, despite being warned of possible dismissal, there is little available to the Court 12 that would constitute a satisfactory lesser sanction while protecting the Court from further 13 unnecessary expenditure of its scarce resources. At this stage of the proceedings, excluding 14 evidence would be a meaningless sanction. Additionally, because the dismissal being considered 15 in this case is without prejudice, the Court is stopping short of using the harshest possible 16 sanction of dismissal with prejudice. 17 Finally, because public policy favors disposition on the merits, this factor weighs against 18 dismissal. Id. After weighing the factors, the Court finds that dismissal without prejudice is 19 appropriate. 20 III. CONCLUSION AND RECOMMENDATIONS 21 Based on the above reasons, the Court RECOMMENDS that: 22 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to comply 23 with Court orders and prosecute this case; and 2. The Clerk of Court be directed to close this case. 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 26 (14) days after being served with these findings and recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 1 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ; IT IS SO ORDERED. 6 | Dated: _ September 11, 2023 □□□ hey 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28