(PC) Cruz v. Gonzalez et al, No. 1:2020cv01720 - Document 17 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed without Prejudice for Plaintiff's Failure to Comply with the Court's 12 Order signed by Magistrate Judge Gary S. Austin on 12/02/2021. Referred to Judge Unassigned; Objections to F&R due within Fourteen-Days. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, 12 Plaintiff, 13 14 15 16 vs. L. GONZALEZ, et al., Defendants. 1:20-cv-01720-NONE-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER (ECF No. 12.) OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 18 19 Guillermo Trujillo Cruz (“Plaintiff”) is a state prisoner proceeding pro se with this civil 20 rights action pursuant to 42 U.S.C. § 1983. On December 7, 2020, Plaintiff filed the Complaint 21 commencing this action. (ECF No. 1.) 22 On October 28, 2021, the court issued an order requiring Plaintiff to pay the $402.00 23 filing fee for this case in full within thirty days. (ECF No. 12.) The thirty-day time period has 24 now expired and Plaintiff has not paid the filing fee or otherwise responded to the court’s order. 25 In determining whether to dismiss this action for failure to prosecute or failure to comply 26 with the directives set forth in its order, “the Court must weigh the following factors: (1) the 27 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 28 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; 1 1 and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 2 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 3 1992) (failure to comply with court orders). see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 4 1994) (failure to prosecute). 5 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 6 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 7 action has been pending since December 7, 2020. Plaintiff’s failure to respond to the court’s 8 order may reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing 9 fee. In such an instance, the court cannot continue to expend its scarce resources assisting a 10 litigant who will not or cannot resolve payment of the filing fee for his lawsuit. Thus, both the 11 first and second factors weigh in favor of dismissal. 12 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 13 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 14 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 15 is Plaintiff’s failure to pay the filing fee for this action that is causing delay. Therefore, the third 16 factor weighs in favor of dismissal. 17 As for the availability of lesser sanctions, at this stage in the proceedings there is little 18 available to the court which would constitute a satisfactory lesser sanction while protecting the 19 court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 20 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 21 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 22 this case is without prejudice, the court is stopping short of issuing the harshest possible sanction 23 of dismissal with prejudice. 24 25 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 26 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed, without 27 prejudice, based on Plaintiff’s failure to comply with the court’s order of October 8, 2021, which 28 required him to pay the $402.00 filing fee in full for this case within thirty days. 2 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after the date of service of these findings and recommendations, Plaintiff may file 4 written objections with the court. 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 (9th Cir. 1991)). Such a document should be captioned “Objections to 9 10 11 12 IT IS SO ORDERED. Dated: December 2, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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