United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO COMPLY
WITH THE COURT'S ORDER, FAILURE TO PAY THE FILING FEE,
AND FAILURE TO PROSECUTE (ECF NO. 14.) OBJECTIONS, IF ANY,
DUE IN 14 DAYS
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Wayne Wilson (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. On May 31, 2019, Plaintiff
filed the Complaint commencing this action. (ECF No. 1.) On
September 25, 2019, the court issued an order denying
Plaintiff's motion to proceed in forma pauperis
under 28 U.S.C. § 1915(g), and requiring Plaintiff to
pay the $400.00 filing fee for this action in full within
thirty days. (ECF No. 14.) The thirty-day time period has now
expired and Plaintiff has not paid the filing fee, or
otherwise responded to the court's order.
determining whether to dismiss this action for failure to
prosecute or failure to comply with the directives set forth
in its order, “the Court must weigh the following
factors: (1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its docket; (3) the risk of prejudice to
defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992) (failure to comply with court orders). see
also In re Eisen, 31 F.3d 1447, 1451 (9th Cir.
1994) (failure to prosecute).
public's interest in expeditious resolution of litigation
always favors dismissal, '” id. (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)), and here, the action has been pending since
May 31, 2019. Plaintiff's failure to respond to the
court's order may reflect Plaintiff's disinterest in
prosecuting this case or his inability to pay the filing fee.
In such an instance, the court cannot continue to expend its
scarce resources assisting a litigant who will not or cannot
resolve payment of the filing fee for his lawsuit. Thus, both
the first and second factors weigh in favor of dismissal.
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Id. (citing Yourish at
991). However, “delay inherently increases the risk
that witnesses' memories will fade and evidence will
become stale, ” id., and it is Plaintiff's
failure to pay the filing fee for this action that is causing
delay. Therefore, the third factor weighs in favor of
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the court which
would constitute a satisfactory lesser sanction while
protecting the court from further unnecessary expenditure of
its scarce resources. Monetary sanctions in this circumstance
are of little use, and given the early stage of these
proceedings, the preclusion of evidence or witnesses is not
available. However, inasmuch as the dismissal being
considered in this case is without prejudice, the court is
stopping short of issuing the harshest possible sanction of
dismissal with prejudice.
because public policy favors disposition on the merits, this
factor will always weigh against dismissal. Id. at
the court HEREBY RECOMMENDS that this action be dismissed,
without prejudice, based on Plaintiff's failure to obey
the court's order of September 25, 2019 by failing to pay
the filing fee and failure to prosecute.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after the date of service of these
findings and recommendations, Plaintiff may file written
objections with the court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff is advised
that failure to file objections within the specified time may
result in the waiver of ...