(PC) Wilson v. Nickerson et al, No. 1:2009cv01577 - Document 8 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Based on Plaintiff's Failure to Obey 6 the Court's Order of September 23, 2009 re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Sandra M. Snyder on 12/4/2009. Referred to Judge O'Neill. Objections to F&R due by 1/6/2010. (Jessen, A)
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(PC) Wilson v. Nickerson et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERT LAWRENCE WILSON, ) ) Plaintiff, ) ) vs. ) ) CALIFORNIA DEPARTMENT OF ) CORRECTIONS AND REHABILITATION, ) et al., ) ) Defendants. ) ) 1:09-cv-01577-LJO-SMS-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 6.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 18 On September 23, 2009, the Court issued an order requiring Plaintiff to submit an application 19 to proceed in forma pauperis pursuant to 28 U.S.C. 1915, or in the alternative, to pay the $350.00 filing 20 fee for this action, within thirty (30) days. (Doc. 6.) The thirty (30) day period has now expired, and 21 Plaintiff has not submitted an application, paid the filing fee, or otherwise responded to the Court's order. 22 In determining whether to dismiss this action for failure to comply with the directives set forth 23 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to 25 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 26 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 28 1 Dockets.Justia.com 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 2 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 3 been pending since August 31, 2009. Plaintiff's failure to respond to the Court's order may reflect 4 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 5 its scarce resources assisting a litigant who will not help himself by either submitting an application to 6 proceed in forma pauperis or paying the filing fee for his lawsuit. Thus, both the first and second factors 7 weigh in favor of dismissal. 8 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 9 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 10 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to pay 11 the filing fee or submit an application to proceed in forma pauperis in the first instance and to respond 12 to the Court's order in the second instance that is causing delay. Therefore, the third factor weighs in 13 favor of dismissal. 14 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 15 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 16 unnecessary expenditure of its scarce resources. Plaintiff's failure to pay to filing fee for this action is 17 an indication that Plaintiff may be indigent, which would make monetary sanctions of little use, and 18 given the early stage of these proceedings, the preclusion of evidence or witnesses is not available. 19 However, inasmuch as the dismissal being considered in this case is without prejudice, the Court is 20 stopping short of issuing the harshest possible sanction of dismissal with prejudice. 21 22 23 24 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the Court’s order of September 23, 2009. 25 These findings and recommendations are submitted to the United States District Judge assigned 26 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 27 served with these findings and recommendations, Plaintiff may file written objections with the Court. 28 2 1 Such a document should be captioned "Objections to Magistrate Judge's Findings and 2 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 3 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED. 6 Dated: icido3 December 4, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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