Donovan L. Haley v. L. Collum, et al

Filing 5

FINDINGS and RECOMMENDATIONS to Dismiss 1 Case for Failure to Obey Court Order; Objections, if any, Due in Thirty Days signed by Magistrate Judge Gary S. Austin on 5/8/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/12/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONOVAN L. HALEY,

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Plaintiff,
vs.

1:14-cv-00233-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(Doc. 3.)

L. COLLUM, et al.,
Defendants.

OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On February 27, 2014, the Court issued an order requiring Plaintiff to submit an

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application to proceed in forma pauperis or pay the filing fee for this action, within forty-five

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days. (Doc. 3.) The forty-five day period has now expired, and Plaintiff has not paid the filing

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fee, submitted an application, or otherwise responded to the Court's 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, Athe 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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A>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 February 21, 2014. Plaintiff's failure to respond to the Court's

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order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court

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cannot continue to expend its scarce resources assisting a litigant who will not help himself by

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resolving the payment of the filing fee for his lawsuit. Thus, both the first and second factors

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weigh in favor of dismissal.

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Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently

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increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it

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is Plaintiff's failure to pay or otherwise resolve the filing fee for his lawsuit that is causing

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delay. Therefore, the 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. Plaintiff has not paid the

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filing fee for this action, indicating that he may be indigent, which would make monetary

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sanctions 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 February 27, 2014. 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 thirty days after being served

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with these findings and recommendations, Plaintiff may file written objections with the court.

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Such a document should be captioned "Objections to Magistrate Judge's Findings and
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Recommendations." Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.
Dated:

May 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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