(PC) Lewis v. Parks ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN DION LEWIS, 1:22-cv-01335-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 PARKS, AND 15 Defendant. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 BE DISMISSED FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDER 17 (ECF No. 4.) 18 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 19 20 21 22 Brian Dion Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 24 commencing this action on September 30, 2022 at the U.S. District Court for the Central District 25 of California. (ECF No. 1.) On October 19, 2022, the case was transferred to this Court. (ECF 26 No. 5.) 27 On October 14, 2022, the Central District Court issued an order granting Plaintiff’s 28 application to proceed in forma pauperis, and ordering Plaintiff to pay the initial filing fee of 1 $200.00 within thirty days. (ECF No. 4.) The thirty-day time period has expired and Plaintiff 2 has not paid the $200.00 initial filing fee at this Court, or at the Central District Court. (Court 3 Financial Department.) Therefore, it will be recommended that this case be dismissed for 4 Plaintiff’s failure to comply with the Court’s order. The Clerk shall be directed to randomly 5 assign a United States District Judge to this action. 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 September 30, 2022. Plaintiff’s failure to pay the initial filing fee 15 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 16 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 17 orders or resolve payment of the initial filing fee for his case. Thus, both the first and second 18 factors weigh in favor of 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 pay the initial $200.00 filing fee that is causing delay. Therefore, the third 23 factor weighs in favor of dismissal. 24 As for the availability of lesser sanctions, at this stage in the proceedings there is little 25 available to the Court which would constitute a satisfactory lesser sanction while protecting the 26 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 27 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 28 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 1 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 2 of dismissal with prejudice. 3 Finally, because public policy favors disposition on the merits, this factor will always 4 weigh against dismissal. Id. at 643. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Clerk of Court shall randomly assign a United States District Judge to this 7 action; and 8 2. The Court HEREBY RECOMMENDS that this action be dismissed based on 9 Plaintiff’s failure to obey the Court’s order issued on October 14, 2022. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days from the date of service of these findings and recommendations, Plaintiff may file 13 written objections with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: December 5, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28