(PC) Pulling v. Pollard et al

Filing 5

FINDINGS and RECOMMENDATIONS recommending that this case be dismissed, without prejudice because of plaitiff's failure to prosecute this case and failure to comply with a court order and clerk of court be directed to close this case re #1 Prisoner Civil Rights Complaint ;referred to Judge Drozd; New Case No. 1:20-cv-00970 DAD-EPG (PC), signed by Magistrate Judge Erica P. Grosjean on 9/10/2020. Objections to F&R due within 14-Day Deadline(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 DARRYL PULLING, Plaintiff, 11 12 13 14 v. B. POLLARD, et al., Defendants. 16 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 19 20 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO PROSECUTE THIS CASE AND FAILURE TO COMPLY WITH A COURT ORDER OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 15 18 Case No. 1:20-cv-00970-EPG (PC) Darryl Pulling (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on July 13, 2020 (ECF No. 1), but 21 did not pay the filing fee or file an application to proceed in forma pauperis. Accordingly, on 22 July 15, 2020, the Court gave Plaintiff forty-five days to either pay the filing fee or submit an 23 application to proceed in forma pauperis. (ECF No. 3). The Court warned Plaintiff that 24 “[f]ailure to comply with this order will result in dismissal of this action.” (Id. at 1). 25 The forty-five-day deadline has expired, and Plaintiff has not paid the filing fee or filed 26 an application to proceed in forma pauperis.1 Accordingly, the Court will recommend that this 27 28 1 Plaintiff also failed to respond to the Court’s order regarding consent or decline of magistrate judge jurisdiction (ECF No. 2-1, p. 3). 1 1 case be dismissed, without prejudice, because of Plaintiff’s failure to prosecute and failure to 2 comply with a court order. 3 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 5 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 6 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 7 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 8 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 9 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 10 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 11 this factor weighs in favor of dismissal. 12 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 13 determine whether the delay in a particular case interferes with docket management and the 14 public interest…. It is incumbent upon the Court to manage its docket without being subject to 15 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Here, Plaintiff’s failure to pay 16 the filing fee or file an application to proceed in forma pauperis, despite being ordered to do so 17 by the Court, is delaying this case and interfering with docket management. Therefore, the 18 second factor weighs in favor of dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 21 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 22 become stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to 23 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 24 dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 28 incarceration and his failure to pay the filing fee, it appears that monetary sanctions are of little 2 1 use. And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 2 available. Additionally, because the dismissal being considered in this case is without 3 prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 4 prejudice. 5 6 7 8 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. After weighing the factors, the Court finds that dismissal without prejudice is appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 9 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 10 prosecute this case and failure to comply with a court order; and 11 12 2. The Clerk of Court be directed to close this case. These findings and recommendations will be submitted to the United States district 13 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 15 file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 17 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 18 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 19 (9th Cir. 1991)). 20 21 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case. 22 23 24 IT IS SO ORDERED. Dated: September 10, 2020 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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