Travis T. Barlow v. Matevousian

Filing 9

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order; Objections, if any, Due within Fourteen (14) Days signed by Magistrate Judge Gary S. Austin on 1/19/2018. Referred to Judge Anthony W. Ishii. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRAVIS T. BARLOW,

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Plaintiff,

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vs.
MATEVOUSIAN, et al.,

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Defendants.

1:17-cv-01521-AWI-GSA-PC
FINDINGS AND RECOMMENDATION
TO DISMISS CASE FOR FAILURE TO
OBEY COURT ORDER
(ECF No. 5.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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I.

BACKGROUND

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Derrick Brown (“Plaintiff”) is a federal prisoner proceeding pro se in this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed the

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Complaint commencing this action on November 14, 2017. (ECF No. 1.)

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Plaintiff did not pay the filing fee for this action nor submit an application to proceed in

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forma pauperis pursuant to 28 U.S.C. ' 1915. Therefore, on November 17, 2017, the court

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issued an order requiring Plaintiff to submit an application to proceed in forma pauperis or pay
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the filing fee for this action, within forty-five days. (ECF No. 5.) The forty-five-day time

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period has now expired, and Plaintiff has not filed an application to proceed in forma pauperis

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or paid the filing fee for this action. Therefore, Plaintiff failed to comply with the court’s

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November 17, 2017, order.

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II.

DISMISSAL FOR FAILURE TO COMPLY WITH COURT 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 November 14, 2017. Plaintiff’s failure to comply with the

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court’s order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the

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court cannot continue to expend its scarce resources assisting a litigant who will not resolve

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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 pay the filing fee or submit an application to proceed in forma pauperis

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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 proceeding pro se who has not paid the filing fee for this action, the court finds

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monetary sanctions of little use, and given the early stage of these proceedings, the preclusion
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of evidence or witnesses is not available.

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considered in this case is without prejudice, the court is stopping short of issuing the harshest

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possible sanction of dismissal with prejudice.

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However, inasmuch as the dismissal being

Finally, because public policy favors disposition on the merits, this factor will always

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weigh against dismissal. Id. at 643.

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III.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, the court HEREBY RECOMMENDS that this action be

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dismissed, without prejudice, based on Plaintiff’s failure to obey the court’s order of November

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17, 2017.

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These findings and recommendation 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).

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fourteen (14) days from the date of service of these findings and recommendation, Plaintiff

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may file written objections with the court. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

Within

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IT IS SO ORDERED.
Dated:

January 19, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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