Brown v. Brown, et al.

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 8/25/2014 recommending that 1 Prisoner Civil Rights Complaint be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/18/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOEL BROWN,

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Plaintiff,
vs.
GOVERNOR EDMUND G. BROWN,
JR., et al.,
Defendants.

1:14-cv-00648-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE, WITHOUT
PREJUDICE, FOR PLAINTIFF’S
FAILURE TO COMPLY WITH COURT
ORDERS
(Docs. 3, 11.)
OBJECTIONS, IF ANY, DUE IN TWENTY
(20) DAYS

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On May 8, 2014, the Court issued an order requiring Plaintiff to either submit an

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application to proceed in forma pauperis or pay the $400.00 filing fee for this action, within

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forty-five days. (Doc. 11.) On June 26, 2014, Plaintiff filed a motion for extension of time to

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comply with the order. (Doc. 9.) On July 9, 2014, the Court denied the motion for extension of

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time and issued an order for Plaintiff to show cause, within thirty days, why this case should

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not be dismissed for his failure to comply with the May 8, 2014 order. (Doc. 11.) The thirty-

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day deadline has passed, and Plaintiff has not responded to the order to show cause.

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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 May 1, 2014. Plaintiff's failure to respond to the Court's orders

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

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

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resolving payment of the filing fee for his lawsuit or defending his lawsuit against dismissal.

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Thus, both the first and second factors 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 respond to the Court's orders that is causing delay. Therefore, the third

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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, making it likely that he is indigent and monetary sanctions are of little

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use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is

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not available. However, inasmuch as the dismissal being considered in this case is without

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prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with

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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

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without prejudice, based on Plaintiff's failure to obey the Court=s orders of May 8, 2014 and

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July 9, 2014.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty

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(20) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Such a document should be captioned "Objections to

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IT IS SO ORDERED.
Dated:

August 25, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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