(PC) Brooks v. Arrizola ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAMAR BROOKS, 1:20-cv-00476-JLT-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 13 vs. OBEY COURT ORDER (ECF No. 37.) 14 ARRIZOLA, et al., OBJECTIONS, IF ANY, DUE WITHIN 15 Defendants. FOURTEEN (14) DAYS 16 17 I. BACKGROUND 18 Lamar Brooks (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on April 3, 2020. (ECF No. 1.) 21 On September 16, 2022, the court issued an order requiring Plaintiff to file an opposition 22 or statement of non-opposition within thirty days to Defendant Arrizola’s motion for summary 23 judgment which was filed on August 17, 2022. (ECF No. 37.) The thirty-day time period has 24 now expired and Plaintiff has not filed any response to the motion for summary judgment.1 25 Therefore, Plaintiff failed to comply with the court’s September 16, 2022 order. 26 1 The Court’s order was returned to the Court by the United States Postmaster on October 27 24, 2022, with a notation that the mail was “Undeliverable, OTC.” (Court Record.) However, Plaintiff 28 has not notified the court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 182(f). 1 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 2 In determining whether to dismiss this action for failure to comply with the directives set 3 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 4 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 7 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 9 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 10 action has been pending since April 3, 2020. Plaintiff’s failure to comply with the court’s order 11 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court cannot 12 continue to expend its scarce resources assisting a litigant who will not resolve payment of the 13 filing fee for her lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 14 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 15 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 16 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 17 it is Plaintiff's failure to pay the filing fee or submit a completed application to proceed in forma 18 pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal. 19 As for the availability of lesser sanctions, at this stage in the proceedings there is little 20 available to the court which would constitute a satisfactory lesser sanction while protecting the 21 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 22 prisoner proceeding pro se who has not paid the filing fee for this action, the court finds monetary 23 sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence 24 or witnesses is not available. However, inasmuch as the dismissal being considered in this case 25 is without prejudice, the court is stopping short of issuing the harshest possible sanction of 26 dismissal with prejudice. 27 Finally, because public policy favors disposition on the merits, this factor will always 28 weigh against dismissal. Id. at 643. 1 III. CONCLUSION AND RECOMMENDATIONS 2 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 3 dismissed based on Plaintiff’s failure to obey the court’s order of September 16, 2022.. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 6 (14) days after the date of service of these findings and recommendations, any party may file 7 written objections with the court. Such a document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 9 and filed within fourteen (14) days after the date the objections are filed. The parties are advised 10 that failure to file objections within the specified time may result in the waiver of rights on appeal. 11 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 12 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14 15 Dated: October 26, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28