(PC)Buchanan v. Pfeiffer, et al., No. 1:2018cv01368 - Document 14 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case, Without Prejudice, Based on Plaintiff's Failure to Comply With Court Order 7 , signed by Magistrate Judge Gary S. Austin on 3/18/2019: 14-Day Objection Deadline. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN K. BUCHANAN, 12 13 14 Plaintiff, vs. C. PFEIFFER, et al., 15 Defendants. 1:18-cv-01368-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITHOUT PREJUDICE, BASED ON PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER (ECF No. 7.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 16 17 On October 4, 2018, the court issued an order requiring Plaintiff to submit a new 18 completed application to proceed in forma pauperis, or pay the $400.00 filing fee for this 19 action, within thirty days. (ECF No. 7.) The order was served on Plaintiff at his address of 20 record at Kern Valley State Prison in Delano, California. (Court Record.) On October 12, 21 2018, Plaintiff filed a notice of change of address to the California Substance Abuse Treatment 22 Facility in Corcoran, California. (ECF No. 8.) On November 27, 2018, the court re-served the 23 October 4, 2018, order on Plaintiff at his new address in Corcoran. (Court Record.) Due to re- 24 service of the order, Plaintiff was granted thirty days from the date of re-service to comply with 25 the order. 26 On December 17, 2018, Plaintiff filed a notice of change of address to the R. J. 27 Donovan Correctional Facility in San Diego, California. (ECF No. 12.) On January 28, 2019, 28 the court re-served the October 4, 2018, order on Plaintiff at his new address in San Diego. 1 1 (Court Record.) Due to re-service of the order, Plaintiff was granted thirty days from the date 2 of re-service to comply with the order. 3 The most recent thirty-day deadline has now expired and Plaintiff has not filed an 4 application to proceed in forma pauperis, paid the filing fee, or otherwise responded to the 5 court’s order. 6 In determining whether to dismiss this action for failure to comply with the directives 7 set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 8 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 9 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 10 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 11 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 12 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 13 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 14 action has been pending since September 14, 2018. Plaintiff’s failure to respond to the Court’s 15 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court 16 cannot continue to expend its scarce resources assisting a litigant who will not help himself by 17 resolving the payment of the filing fee for his lawsuit. Thus, both the first and second factors 18 weigh in favor of dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 21 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 22 it is Plaintiff’s failure to respond to the court’s order that is causing delay. Therefore, the third 23 factor weighs in favor of dismissal. 24 As for the availability of lesser sanctions, at this stage in the proceedings there is little 25 available to the court which would constitute a satisfactory lesser sanction while protecting the 26 court from further unnecessary expenditure of its scarce resources. Plaintiff has not paid the 27 filing fee for this action making it likely that he is indigent and monetary sanctions are of little 28 use, and given the early stage of these proceedings the preclusion of evidence or witnesses is 2 1 not available. However, inasmuch as the dismissal being considered in this case is without 2 prejudice, the court is stopping short of issuing the harshest possible sanction of dismissal with 3 prejudice. 4 5 6 7 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 without prejudice, based on Plaintiff’s failure to obey the court’s order of October 4, 2018. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, Plaintiff may file 11 written objections with the court. 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may waive the right to appeal the District Court’s order. 14 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Such a document should be captioned “Objections to 15 16 17 18 IT IS SO ORDERED. Dated: March 18, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3
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