Woods v. Adams et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order re 28 , signed by Magistrate Judge Gary S. Austin on 12/15/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EARNEST CASSELL WOODS II,
Plaintiff,
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v.
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1:13-cv-00621-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(ECF No. 28.)
DARRELL ADAMS, et al.,
Defendants.
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OBJECTIONS, IF ANY, DUE IN
FOURTEEN (14) DAYS
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Earnest Cassell Woods II (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action under 42 U.S.C. § 1983. Plaintiff filed his Complaint
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commencing this action on April 29, 2013. (ECF No. 1.)
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On October 31, 2017, the Court issued an order requiring Plaintiff to pay the $400.00
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filing fee for this action in full within thirty days. (ECF No. 28.) The thirty day time period
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has now expired, and Plaintiff has not made any payment or otherwise responded to the Court’s
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order.
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In determining whether to dismiss this action for failure to comply with the directives
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set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in
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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
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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d
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639, 642 (9th 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,’”
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id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the
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action has been pending since April 29, 2013. Plaintiff’s failure to respond to the Court’s order
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may reflect Plaintiff’s disinterest in prosecuting this case or inability to pay the filing fee. In
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such an instance, the Court cannot continue to expend its scarce resources assisting a litigant
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who will not or cannot resolve payment of the filing fee for his lawsuit. Thus, both the first and
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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
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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently
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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and
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it is Plaintiff’s failure to pay the filing fee for this action that is causing delay. Therefore, the
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third factor weighs in 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. Monetary sanctions in this
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circumstance are of little use, and given the early stage of these proceedings, the preclusion of
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evidence or witnesses is not available. However, inasmuch as the dismissal being considered in
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this case is without prejudice, the Court is stopping short of issuing the harshest possible
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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, the Court HEREBY RECOMMENDS that this action be dismissed based
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on Plaintiff’s failure to obey the Court’s order of October 31, 2017. These findings and
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recommendations are submitted to the United States District Judge assigned to the case,
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pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen (14) days after the
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date of service of these findings and recommendations, Plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d
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834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
December 15, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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