(HC) Broadnax v. Newsom ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COTTRELL L. BROADNAX, 1:23-cv-00064-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 NEWSOM, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 BE DISMISSED FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT 17 ORDER 18 (ECF No. 12.) 19 OBJECTIONS, IF ANY, DUE BY AUGUST 8, 2023 20 21 22 23 I. BACKGROUND 24 Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. 25 § 1983. Plaintiff filed the Complaint commencing this action on December 23, 2022 at the 26 United States District Court for the Northern District of California. (ECF No. 1.) On January 27 13, 2023, the case was transferred to the United States District Court for the Eastern District of 28 California. (ECF No. 7.) 1 On June 13, 2023, the Court issued an order requiring Plaintiff to either submit an 2 application to proceed in forma pauperis or pay the filing fee for this case on or before July 7, 3 2023. (ECF No. 12.) The July 7, 2023 deadline has now passed and Plaintiff has not filed an 4 application, paid the filing fee, or otherwise responded to the Court’s order. 5 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT’S ORDERS 6 In determining whether to dismiss this action for failure to comply with the directives set 7 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 8 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 9 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 10 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 11 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 12 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 13 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 14 action has been pending since December 23, 2022. Plaintiff’s failure to respond to the Court’s 15 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court 16 cannot continue to expend its scarce resources assisting a litigant who will not resolve payment 17 of the filing fee for his lawsuit. Thus, both the first and second factors weigh in favor of 18 dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 21 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 22 is Plaintiff's failure to file an amended complaint and pay the filing fee or submit an application 23 to proceed in forma pauperis that is causing delay. Therefore, the third factor weighs in favor of 24 dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court that would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 28 prisoner proceeding pro se who has not paid the filing fee or submitted an application to proceed 1 in forma pauperis for this action, the Court finds monetary sanctions of little use, and given the 2 early stage of these proceedings, the preclusion of evidence or witnesses is not available. 3 However, inasmuch as the dismissal being considered in this case is without prejudice, the Court 4 is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 5 Finally, because public policy favors disposition on the merits, this factor will always 6 weigh against dismissal. Id. at 643. 7 III. ORDER, RECOMMENDATIONS, AND CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 9 United States District Judge to this case; and 10 The Court HEREBY RECOMMENDS that this case be dismissed based on Plaintiff's 11 failure to comply with the Court’s order issued on June 13, 2023. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before 14 August 8, 2023, Plaintiff may file written objections with the Court. Such a document should 15 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 16 advised that failure to file objections within the specified time may result in the waiver of rights 17 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 18 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: July 18, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28