(PC)Faultry v. Perez, No. 1:2012cv01619 - Document 5 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order, signed by Magistrate Judge Gary S. Austin on 12/6/12. Referred to Judge O'Neill. Objections, If Any, Due In 30 Days. (Gonzalez, R)
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(PC)Faultry v. Perez Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES BERNARD FAULTRY, 12 13 14 15 16 Plaintiff, vs. PEREZ, 1:12-cv-01619-LJO-GSA (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER OBJECTIONS, IF ANY, DUE IN 30 DAYS Defendant. ______________________________/ 17 On October 4, 2012, the court issued an order requiring Plaintiff to submit an application to 18 proceed in forma pauperis or pay the $350.00 filing fee for this action, within forty-five (45) days. (Doc. 19 3.) The forty-five day period has now expired, and plaintiff has not submitted an application to proceed 20 in forma pauperis, paid the filing fee, or otherwise responded to the court's order. 21 In determining whether to dismiss this action for failure to comply with the directives set forth 22 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 23 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 24 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 25 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 26 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 27 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 October 3, 2012. 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 resolving payment of the filing fee 6 to enable his case to proceed. Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 8 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 9 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to pay 10 the filing fee for his lawsuit or submit an application to proceed in forma pauperis in the first instance 11 and to respond to the Court's order in the second instance that is causing delay. Therefore, the third 12 factor weighs in favor of dismissal. 13 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 14 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 15 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee for his lawsuit, 16 making it likely that he is indigent and making monetary sanctions of little use, and given the early stage 17 of these proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as 18 the dismissal being considered in this case is without prejudice, the Court is stopping short of issuing 19 the harshest possible sanction of dismissal with prejudice. 20 21 22 23 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 October 4, 2012. 24 These findings and recommendations are submitted to the United States District Judge assigned 25 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 26 served with these findings and recommendations, plaintiff may file written objections with the court. 27 Such a document should be captioned "Objections to Magistrate Judge's Findings and 28 2 1 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 IT IS SO ORDERED. 6 Dated: 6i0kij December 6, 2012 /s/ Gary S. Austin 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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