Villa v. Martinez, et al.

Filing 4

FINDINGS and RECOMMENDATIONS, Recommending that this Case be Dismissed for Plaintiff's Failure to Obey a Court Order re 3 , signed by Magistrate Judge Gary S. Austin on 3/24/17. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OSVALDO VILLA,
Plaintiff,

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vs.
A. MARTINEZ, et al.,
Defendants.

1:17-cv-00070-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED FOR PLAINTIFF’S FAILURE
TO OBEY COURT ORDER
(ECF No. 3.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY (30) DAYS

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Osvaldo Villa (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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January 17, 2017. (ECF No. 1.)

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On January 20, 2017, the court issued an order requiring Plaintiff to submit an

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

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within thirty days. (ECF No. 3.) More than two months have passed, and Plaintiff has not paid

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the filing fee, submitted the 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, “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 January 17, 2017. 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 the

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

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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 submit an application to proceed in forma pauperis to the court or pay

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the filing fee for his case that is causing delay. Therefore, the third factor weighs in favor of

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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 and may be indigent, making monetary sanctions of little use, and

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given the early stage of these proceedings, the preclusion of evidence or witnesses is not

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available.

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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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However, inasmuch as the dismissal being considered in this case is without

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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based on Plaintiff's failure to obey the court’s order of January 20, 2017. 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 (30) days after being

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

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court. 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th

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Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 24, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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