Petillo v. Galliger et al

Filing 45

FINDINGS and RECOMMENDATIONS recommending that that this action be dismissed without prejudice based on Plaintiff's failure to obey the Court's order issued on March 29, 2021 requiring him to pay the filing fee ;referred to Judge Unassigned DJ,signed by Magistrate Judge Gary S. Austin on 05/14/2021. (Objections to F&R due within 14-Day Deadline) (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ISAIAH J. PETILLO,

12

Plaintiff,

13
14
15
16

vs.
GALLIGER, et al.,
Defendants.

1:18-cv-00217-NONE-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED WITHOUT PREJUDICE FOR
PLAINTIFF’S FAILURE TO COMPLY WITH
THE COURT’S ORDER REQUIRING HIM TO
PAY THE FILING FEE
(ECF No. 44.)
OBJECTIONS, IF ANY, DUE IN 14 DAYS

17
18

Isaiah J. Petillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

19

with this civil rights action pursuant to 42 U.S.C. § 1983. On February 12, 2018, Plaintiff filed

20

the Complaint commencing this action. (ECF No. 1.)

21

On March 29, 2021, the court issued an order revoking Plaintiff’s in forma pauperis status

22

under 28 U.S.C. § 1915(g) and requiring Plaintiff to pay the $400.00 filing fee for this action in

23

full within thirty days. (ECF No. 44.) The thirty-day time period has now expired and Plaintiff

24

has not paid the filing fee or otherwise responded to the court’s order.

25

In determining whether to dismiss this action for failure to prosecute or failure to comply

26

with the directives set forth in its order, “the Court must weigh the following factors: (1) the

27

public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

28

(3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives;
1

1

and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

2

291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

3

1992) (failure to comply with court orders). see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir.

4

1994) (failure to prosecute).

5

“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’”

6

id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the

7

action has been pending since February 12, 2018. Plaintiff’s failure to respond to the court’s

8

order may reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing

9

fee. In such an instance, the court cannot continue to expend its scarce resources assisting a

10

litigant who will not or cannot resolve payment of the filing fee for his lawsuit. Thus, both the

11

first and second factors weigh in favor of dismissal.

12

Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

13

and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

14

increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it

15

is Plaintiff’s failure to pay the filing fee for this action that is causing delay. Therefore, the third

16

factor weighs in favor of dismissal.

17

As for the availability of lesser sanctions, at this stage in the proceedings there is little

18

available to the court which would constitute a satisfactory lesser sanction while protecting the

19

court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this

20

circumstance are of little use, and given the early stage of these proceedings, the preclusion of

21

evidence or witnesses is not available. However, inasmuch as the dismissal being considered in

22

this case is without prejudice, the court is stopping short of issuing the harshest possible sanction

23

of dismissal with prejudice.

24
25

Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.

26

Accordingly, the court HEREBY RECOMMENDS that this action be dismissed without

27

prejudice based on Plaintiff’s failure to obey the court’s order issued on March 29, 2021 requiring

28

him to pay the filing fee.
2

1

These findings and recommendations are submitted to the United States District Judge

2

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

3

(14) days after the date of service of these findings and recommendations, any party may file

4

written objections with the court.

5

Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

6

and filed within ten (10) days after the objections are filed. Plaintiff is advised that failure to

7

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

8

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

9

(9th Cir. 1991)).

Such a document should be captioned “Objections to

10
11
12
13

IT IS SO ORDERED.
Dated:

May 14, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3