(PS)Brittany v. United States of America, No. 2:2018cv00925 - Document 4 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/15/2018 RECOMMENDING that the 1 Complaint be DISMISSED without prejudice; and this action be CLOSED. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Washington, S)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHALLA C. ALFARO BRITTANY, 12 Plaintiff, 13 14 No. 2:18-cv-0925 JAM DB PS v. FINDINGS AND RECOMMENDATIONS UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 Plaintiff, Michalla Alfaro Brittany, has requested authority under 28 U.S.C. § 1915 to 18 proceed in forma pauperis. (ECF No. 2.) Plaintiff is proceeding in this action pro se. This matter 19 was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 20 636(b)(1). 21 On October 11, 2018, the undersigned issued an order noting that plaintiff’s application to 22 proceed in forma pauperis failed to show that plaintiff was unable to pay the required filing fee. 23 (ECF No. 3.) Plaintiff was given twenty-one days to submit the appropriate filing fee. (Id. at 2.) 24 The twenty-one day period has passed and plaintiff has not responded to the court’s order in any 25 manner. 26 27 28 ANALYSIS The factors to be weighed in determining whether to dismiss a case for lack of prosecution are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 1 1 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 2 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 3 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 4 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 5 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 6 at 1260. Failure of a party to comply with the any order of the court “may be grounds for 7 8 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 9 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 10 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 11 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 12 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 13 Rules. Id. Here, plaintiff failed to comply with, or even respond to, the undersigned’s October 11, 14 15 2018 order. That order explicitly warned plaintiff that the failure to comply “in a timely manner 16 may result in a recommendation that this action be dismissed.” (ECF No. 3 at 2.) Nonetheless, 17 plaintiff has failed to respond to that order. 18 In this regard, plaintiff’s lack of prosecution of this case renders the imposition of 19 monetary sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the 20 court’s need to manage its docket, and the risk of prejudice to the defendant all support the 21 imposition of the sanction of dismissal. Only the public policy favoring disposition on the merits 22 counsels against dismissal. However, plaintiff’s failure to prosecute the action in any way makes 23 disposition on the merits an impossibility. The undersigned will therefore recommend that this 24 action be dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply 25 with the court’s orders. See Fed. R. Civ. P. 41(b). 26 //// 27 //// 28 //// 2 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s April 16, 2018 complaint (ECF No. 1) be dismissed without prejudice; and 3 2. This action be closed. 4 These findings and recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 6 days after being served with these findings and recommendations, plaintiffs may file written 7 objections with the court. A document containing objections should be titled “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 objections within the specified time may, under certain circumstances, waive the right to appeal 10 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Dated: November 15, 2018 12 13 14 15 16 17 18 19 20 21 DLB:6 DB/orders/orders.pro se/brittany0925.dlop.f&rs 22 23 24 25 26 27 28 3