Rushdan v. Davey et al.

Filing 18

ORDER Dismissing Action, without Prejudice, for Failure to Comply with Court Order to Pay Filing Fee re 12 , signed by Chief Judge Lawrence J. O'Neill on 1/20/17. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALADIN RUSHDAN,
aka ROBERT STANLEY WOOD,

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO COMPLY
WITH COURT ORDER TO PAY FILING
FEE
(ECF No. 12.)

Plaintiff,

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1:16-cv-00988-LJO-GSA-PC

vs.
D. DAVEY, et al.,

ORDER FOR CLERK TO CLOSE CASE

Defendants.

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Saladan Rushdan, aka Robert Stanley Wood, (“plaintiff”) is a state prisoner proceeding
pro se in this civil rights action pursuant to 42 U.S.C. ' 1983.

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On December 1, 2016, the court issued an order revoking plaintiff’s in forma pauperis

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status under 28 U.S.C. § 1915(g) and requiring plaintiff to pay the balance of the filing fee

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owed for this case in full, within thirty days. (ECF No. 12.) The thirty day period has now

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expired, and plaintiff has not paid the filing fee.

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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 July 1, 2016. The Court cannot continue to expend its scarce
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resources assisting a litigant who will not resolve payment of the filing fee for his lawsuit.

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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, “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 that is causing delay. Therefore, the third factor

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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

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witnesses is not available. However, inasmuch as the dismissal being considered in this case is

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without prejudice, the Court is stopping short of issuing the harshest possible sanction of

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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, IT IS HEREBY ORDERED that:

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1.

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This case is DISMISSED, without prejudice, based on plaintiff’s failure to

comply with the court’s order requiring him to pay the filing fee in full for this case; and
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The Clerk is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 20, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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