Johnson v. Yulit et al

Filing 10

ORDER Dismissing Action without Prejudice for Failure to Comply with Court's Order, signed by Magistrate Judge Gary S. Austin on 8/23/12. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT D. JOHNSON,

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1:12-cv-00947-GSA-PC

Plaintiff,

ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO COMPLY
WITH COURT’S ORDER
(Doc. 8.)

v.
DR. YULIT, et al.,

ORDER FOR CLERK TO CLOSE CASE
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Defendants.
/

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Robert D. Johnson (“Plaintiff”), proceeding pro se, filed this civil rights action on June 1,

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2012. (Doc. 1.) On June 19, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action,

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and no other parties have made an appearance. (Doc. 9.) Therefore, pursuant to Appendix A(k)(4)

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of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local Rule

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Appendix A(k)(3).

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Plaintiff has not paid the $350.00 filing fee or filed an application to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915, and on June 14, 2012, the Court entered an order requiring

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Plaintiff to do so within forty-five days. (Doc. 8.) More than forty-five days have passed and

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Plaintiff has not complied with or otherwise responded to the Court’s order. Plaintiff was

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forewarned in the Court’s order that dismissal would occur if he failed to obey the order.

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A civil action may not proceed absent the submission of either the filing fee or an application

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to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Because Plaintiff has submitted neither and

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has not responded to the Court’s order to do so, dismissal of this action is appropriate. In re
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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006);

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Local Rule 110. In determining whether to dismiss this action for failure to comply with the

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directives set forth in its order, “the Court must weigh the following factors: (1) the public’s interest

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in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th

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Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.

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(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action

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has been pending since June 1, 2012. Plaintiff's failure to respond to the Court's order may reflect

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Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to

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expend its scarce resources assisting a litigant who will not help himself by resolving the payment

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of the filing fee for his lawsuit. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and

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of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the

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risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's

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failure to resolve the payment of the filing fee for this action in the first instance and to respond to

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the Court's order in the second instance that is causing delay. Therefore, the third factor weighs in

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favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Plaintiff failed to pay the filing

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fee for this action, indicating that he may be indigent, making monetary sanctions of little use, and

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given the early stage of these proceedings, the preclusion of evidence or witnesses is not available.

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However, inasmuch as the dismissal being considered in this case is without prejudice, the Court is

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stopping short of issuing the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor will always weigh
against dismissal. Id. at 643.
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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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This action is DISMISSED, without prejudice, for Plaintiff's failure to obey the
Court’s order of June 14, 2012; and

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The Clerk is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated:
6i0kij

August 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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