United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO COMPLY
WITH COURT'S ORDER (ECF No. 3.)
GARY
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
I.
BACKGROUND
Brittney
Flow-Sunkett (“Plaintiff”) is proceeding pro
se with this civil rights action pursuant to 42 U.S.C.
§ 1983. The original Complaint was filed on June 12,
2019, as case number 1:19-cv-00816-GSA-PC
(“19-816”). (Court docket.) On July 11, 2019,
co-plaintiffs Glenn Sunkett and Brittney Flow-Sunkett,
husband and wife, filed the First Amended Complaint in case
19-86. (Case 19-816, ECF No. 13.)
On
October 29, 2019, the court issued an order severing the
co-plaintiffs' claims and opening the present case for
Plaintiff Brittney Flow-Sunkett (“Flow-Sunkett”).
(ECF No. 3.) Glenn Sunkett remained as the sole plaintiff in
case 19-816. The co-plaintiffs were ordered to each file a
Second Amended Complaint in their own cases within thirty
days. (ECF No. 3.) Plaintiff Flow-Sunkett was also ordered to
either pay the filing fee for this case, or submit an
application to proceed in forma pauperis within
thirty days. The thirty-day time period has passed and
Plaintiff Flow-Sunkett has not filed a Second Amended
Complaint, nor paid the filing fee, and has not submitted an
application to proceed in forma pauperis, or
otherwise responded to the court's order.
II.
DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER
In
determining whether to dismiss this action for 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)).
“‘The
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
June 12, 2019. Plaintiff's failure to comply with the
court's order may reflect Plaintiff's disinterest in
prosecuting this case. In such an instance, the court cannot
continue to expend its scarce resources assisting a litigant
who will not comply with the court's order to file a
Second Amended Complaint or resolve the payment of the filing
fee in her case. Thus, both the first and second factors
weigh in favor of dismissal.
Turning
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 file the Second Amended Complaint and resolve the
payment of the filing fee that is causing delay. Therefore,
the third factor weighs in favor of dismissal.
As for
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. Given that Plaintiff is proceeding
pro se and has not paid the filing fee for this
action, the court finds monetary sanctions 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.
Finally,
because public policy favors disposition on the merits, this
factor will always weigh against dismissal. Id. at
643.
III.
CONCLUSION AND RECOMMENDATIONS
Based
on the foregoing, the court HEREBY
RECOMMENDS that:
1. This case be DISMISSED, without prejudice, based on
Plaintiff's failure to comply with the court's order
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