(PC) Stevens v. Robinson ( 2022 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 LYRALISA LAVENA STEVENS, Case No. 1:22-cv-00742-ADA-EPG (PC) 14 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE 15 v. DISMISSED, WITHOUT PREJUDICE 16 ROBINSON, OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 17 Defendant. 18 19 Plaintiff Lyralisa Lavena Stevens is a state prisoner proceeding pro se in this civil rights 20 action. (ECF No. 1). Despite the District Judge ordering Plaintiff to pay the $402 filing fee in this 21 case, Plaintiff has failed to do so. (ECF No. 7). Because Plaintiff has failed to pay the filing fee 22 and comply with a court order, the Court recommends dismissal of this case. 23 I. BACKGROUND 24 Plaintiff filed this lawsuit on June 17, 2022, generally alleging constitutional violations 25 related to the allegation that Defendant Robinson has repeatedly misgendered her and refused to 26 use proper pronouns when speaking to her. (ECF No. 1, p. 2-4). Further, Plaintiff alleges that 27 Defendant Robinson wrongfully caused another officer to open Plaintiff’s cell door and order 28 Plaintiff to meet with Defendant Robins. (Id. at 5). 1 On June 29, 2022, the Court issued findings and recommendations, recommending that 2 Plaintiff may not proceed in forma pauperis in this action and instead be directed to pay the 3 required filing fee in full because: (1) she is subject to the three strikes bar under 28 U.S.C. § 4 1915(g); and (2) the allegations in her complaint do not satisfy the “imminent danger of serious 5 physical injury” exception to § 1915(g). (ECF No. 5). 6 The District Judge adopted the findings and recommendations on August 9, 2022, and 7 ordered Plaintiff to pay the filing fee within thirty days, warning that failure to do so would result 8 in the dismissal of this action without prejudice. (ECF No. 7). However, Plaintiff failed to submit 9 the filing fee as ordered and the time to do so has expired. 10 II. ANALYSIS 11 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 12 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 13 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 14 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 15 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 16 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 17 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 18 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 19 first factor weighs in favor of dismissal. 20 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 21 determine whether the delay in a particular case interferes with docket management and the 22 public interest.” Id. Here, Plaintiff has failed to pay the filing fee as required by a court order. 23 Allowing this case to proceed further, without any indication that Plaintiff will pay the filing fee, 24 would waste judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 25 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out 26 these proceedings when it appears that plaintiff has no intention of diligently pursuing this 27 case.”). Therefore, the second factor weighs in favor of dismissal. 28 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 1 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 2 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 3 will become stale,” id. at 643, and it is Plaintiffs’ failure to comply with a court order that is 4 causing delay and preventing this case from progressing. Therefore, the third factor weighs in 5 favor of dismissal. 6 As for the availability of lesser sanctions, given that Plaintiff has chosen not to pay the 7 filing fee, despite being warned of dismissal, there is little available to the Court that would 8 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 9 expenditure of its scarce resources. (See ECF No. 7). And given the stage of these proceedings, 10 the preclusion of evidence or witnesses is not available. Additionally, because the dismissal being 11 considered in this case is without prejudice, the Court is stopping short of using the harshest 12 possible sanction of dismissal with prejudice. 13 Finally, because public policy favors disposition on the merits, this factor weighs against 14 dismissal. Pagtalunan, 291 F.3d at 643. 15 III. CONCLUSION AND RECOMMENDATIONS 16 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 17 Accordingly, the Court HEREBY RECOMMENDS that: 18 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to pay the 19 filing fee and comply with a court order; and 20 2. The Clerk of Court be directed to close this case. 21 These findings and recommendations are submitted to the United States district judge 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 23 (14) days after being served with these findings and recommendations, Plaintiff may file written 24 objections with the court. Such a document should be captioned “Objections to Magistrate 25 Judge’s Findings and Recommendations.” 26 // 27 // 28 // 1 Plaintiff is advised that failure to file objections within the specified time may result in the 2 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 3 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. Dated: _ October 26, 2022 [Jee hey □□ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28