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)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 SALADIN RUSHDAN, aka ROBERT STANLEY WOOD, 11 12 ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO COMPLY WITH COURT ORDER TO PAY FILING FEE (ECF No. 12.) Plaintiff, 9 10 1:16-cv-00988-LJO-GSA-PC vs. D. DAVEY, et al., ORDER FOR CLERK TO CLOSE CASE Defendants. 13 14 15 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. 16 On December 1, 2016, the court issued an order revoking plaintiff’s in forma pauperis 17 status under 28 U.S.C. § 1915(g) and requiring plaintiff to pay the balance of the filing fee 18 owed for this case in full, within thirty days. (ECF No. 12.) The thirty day period has now 19 expired, and plaintiff has not paid the filing fee. 20 In determining whether to dismiss this action for failure to comply with the directives 21 set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 22 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 23 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 24 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 25 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 27 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 28 action has been pending since July 1, 2016. The Court cannot continue to expend its scarce 1 1 resources assisting a litigant who will not resolve payment of the filing fee for his lawsuit. 2 Thus, both the first and second factors weigh in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 4 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 5 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 6 it is plaintiff's failure to pay the filing fee that is causing delay. Therefore, the third factor 7 weighs in favor of dismissal. 8 As for the availability of lesser sanctions, at this stage in the proceedings there is little 9 available to the Court which would constitute a satisfactory lesser sanction while protecting the 10 Court from further unnecessary expenditure of its scarce resources. Given that plaintiff is a 11 prisoner who has not paid the filing fee for this action, the Court finds monetary sanctions of 12 little use, and given the early stage of these proceedings, the preclusion of evidence or 13 witnesses is not available. However, inasmuch as the dismissal being considered in this case is 14 without prejudice, the Court is stopping short of issuing the harshest possible sanction of 15 dismissal with prejudice. 16 17 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. 20 21 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 2. The Clerk is DIRECTED to close this case. 22 23 24 25 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 20, 2017 UNITED STATES CHIEF DISTRICT JUDGE 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?