Thomas v. Perez et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 2/24/2017 recommending to dismiss case for failure to obey court order. Referred to Judge Dale A. Drozd; Objections to F&R due by 3/20/2017. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RAYSHON THOMAS,
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Plaintiff,
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vs.
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1:16-cv-00192-DAD-GSA-PC
FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO OBEY
COURT ORDER
(ECF No. 17.)
PEREZ, et al.,
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Defendants.
OBJECTIONS, IF ANY, DUE IN TWENTY
(20) DAYS
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On January 20, 2017, the court issued an order requiring Plaintiff to submit a new,
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appropriately completed application to proceed in forma pauperis, or pay the $400.00 filing fee
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for this action within twenty days. (ECF No. 17.) The twenty-day time period has expired and
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Plaintiff has not paid the filing fee, submitted a new application or otherwise responded to the
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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, “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 February 5, 2016. 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 resolve payment
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of the filing fee for his lawsuit. Thus, both the first and second factors weigh in favor of
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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 or submit a new application to proceed in forma
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pauperis that is causing 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. Given that Plaintiff is a
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prisoner who has not paid the filing fee for this action, the court finds monetary sanctions of
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little use, and given the early stage of these proceedings the preclusion of evidence or witnesses
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is 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.
Accordingly, IT IS HEREBY RECOMMENDED that this case be dismissed based on
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Plaintiff's failure to obey the court’s order of January 20, 2017.
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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 twenty (20) days from 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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These findings and
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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:
February 24, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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