(PC) Davis v. Kern Valley State Prison ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TRAVON ANTWUN DAVIS, Case No. 1:22-cv-01489-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO KERN VALLEY STATE PRISON, COMPLY WITH A COURT ORDER AND 13 TO PROSECUTE THIS CASE Defendant. 14 (ECF No. 4) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN 17 DISTRICT JUDGE 18 Travon Davis (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. 20 On November 22, 2022, the Court issued an order requiring Plaintiff to “submit the 21 attached application to proceed in forma pauperis, completed and signed, or in the alternative, 22 pay the $402.00 filing fee for this action.” (ECF No. 4, p. 1). The Court warned Plaintiff that 23 “[f]ailure to comply with this order will result in dismissal of this action.” (Id.). 24 Plaintiff’s deadline to file an application to proceed in forma pauperis or pay the $402 25 filing fee has passed, and Plaintiff failed to do either. Accordingly, the Court will recommend 26 that this case be dismissed, without prejudice, for failure to comply with a court order and to 27 prosecute this case 28 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 1 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 2 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 3 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 4 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 5 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 6 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 7 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 8 this factor weighs in favor of dismissal. 9 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 10 determine whether the delay in a particular case interferes with docket management and the 11 public interest…. It is incumbent upon the Court to manage its docket without being subject to 12 routine noncompliance of litigants....” Id. Plaintiff’s failure to file an application to proceed in 13 forma pauperis or pay the $402 filing fee, despite being ordered to do so by the Court, is 14 delaying this case and interfering with docket management. Therefore, the second factor 15 weighs in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 18 inherently increases the risk that witnesses’ memories will fade and evidence will become 19 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 20 case that is causing delay and preventing this case from progressing. Therefore, the third factor 21 weighs in favor of dismissal. 22 As for the availability of lesser sanctions, given that Plaintiff has chosen to stop 23 prosecuting this case and has failed to comply with a court order, despite being warned of 24 possible dismissal, there is little available to the Court which would constitute a satisfactory 25 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 26 resources. Considering Plaintiff’s incarceration and failure to pay the filing fee, it appears that 27 monetary sanctions are of little use. And as Plaintiff has decided to stop prosecuting this case, 28 excluding evidence would be a meaningless sanction. Additionally, because the dismissal 1 || being considered in this case is without prejudice, the Court is stopping short of using the 2 || harshest possible sanction of dismissal with prejudice. 3 Finally, because public policy favors disposition on the merits, this factor weighs 4 || against dismissal. Id. 5 After weighing the factors, the Court finds that dismissal without prejudice is 6 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 7 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 8 comply with a court order and to prosecute this case; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 12 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 13 || file written objections with the Court. The 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 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 19 || judge to this case. 20 IT IS SO ORDERED. 22 |! Dated: _ January 23, 2023 [Jee ey —— 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28