-GSA (PC) Armstrong v. Hedgpeth, et al., No. 1:2011cv00761 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS And RECOMMENDATIONS To Dismiss Case For Failure To Obey A Court Order (Doc. 3 ), Objections, If Any, Due In Thirty Days, signed by Magistrate Judge Gary S. Austin on 7/14/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/18/2011. (Fahrney, E)

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-GSA (PC) Armstrong v. Hedgpeth, et al. Doc. 7 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 BRADY K. ARMSTRONG, 7 8 9 10 Plaintiff, vs. A. HEDGPETH, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:11-cv-00761-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 3.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 11 12 On May 17, 2011, the court issued an order requiring Plaintiff to either submit an application to 13 proceed in forma pauperis or pay the $350.00 filing fee for this action, within forty-five (45) days. (Doc. 14 3.) The forty-five (45) day period has now expired, and Plaintiff has not submitted an application, paid 15 the filing fee, or otherwise responded to the court's order. 16 In determining whether to dismiss this action for failure to comply with the directives set forth 17 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 18 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 19 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 20 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 21 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 22 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 23 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 24 been pending since May 11, 2011. Plaintiff's failure to respond to the Court's order may reflect 25 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 26 its scarce resources assisting a litigant who will not help himself by resolving the payment of the filing 27 fee for his lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 28 1 Dockets.Justia.com 1 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 2 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 3 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to pay 4 the filing fee in the first instance and to respond to the Court's order in the second instance that is causing 5 delay. Therefore, the third factor weighs in favor of dismissal. 6 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 7 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 8 unnecessary expenditure of its scarce resources. Because Plaintiff did not pay the filing fee, it is likely 9 that he is indigent, making monetary sanctions of little use, and given the early stage of these 10 proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as the 11 dismissal being considered in this case is without prejudice, the Court is stopping short of issuing the 12 harshest possible sanction of dismissal with prejudice. 13 14 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 15 16 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the court’s order of May 17, 2011. 17 These findings and recommendations are submitted to the United States District Judge assigned 18 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 19 served with these findings and recommendations, Plaintiff may file written objections with the court. 20 Such a document should be captioned "Objections to Magistrate Judge's Findings and 21 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 22 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: 6i0kij July 14, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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