(PC)Ouphthame v. Frauenheim et al

Filing 10

FINDINGS and RECOMMENDATIONS, Recommending That This Case be Dismissed, Without Prejudice, for Failure to Obey Court Order; ORDER for Clerk to Send Plaintiff an Application to Proceed In Forma Pauperis for Non-Prisoner, signed by Magistrate Judge Gary S. Austin on 1/6/2021. Objections to F&R due within FOURTEEN DAYS. (Attachments: # 1 IFP Application Non-Prisoner)(Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LAJA OUPHTHAME, 11 Plaintiff, 12 13 vs. SCOTT FRAUENHEIM, et al., 14 Defendants. 1:20-cv-01137-NONE-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO OBEY COURT ORDER (ECF No. 8.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 15 ORDER FOR CLERK TO SEND PLAINTIFF AN APPLICATION TO PROCEED IN FORMA PAUPERIS FOR A NON-PRISONER 16 17 18 19 I. BACKGROUND 20 Laja Ouphthame (“Plaintiff”) is a former state prisoner proceeding pro se in this civil 21 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action 22 on August 14, 2020. (ECF No. 1.) 23 On August 20, 2020, the court issued an order for Plaintiff to either file an application to 24 proceed in forma pauperis, or pay the $400.00 filing fee, within 30 days. (ECF No. 4.) The court 25 provided Plaintiff with a form application to proceed in forma pauperis, however the form was 26 not the appropriate form for a non-prisoner. (Id.) On September 16, 2020, Plaintiff submitted 27 the application to proceed in forma pauperis which had been sent to her. (ECF No. 5.) But as 28 noted above, the application was not on the appropriate form for a non-prisoner. 1 1 On October 8, 2020, the court issued an order for Plaintiff to submit a new application to 2 proceed in forma pauperis on the appropriate form for a non-prisoner, or to pay the $400.00 filing 3 fee, within thirty days. (ECF No. 8.) The court provided Plaintiff with the appropriate form 4 application for a non-prisoner. (Id.) The thirty-day time period has now expired and Plaintiff 5 has not submitted the new application, paid the filing fee, or otherwise responded to the court’s 6 order. Therefore, Plaintiff failed to comply with the court’s October 8, 2020 order. 7 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 8 In determining whether to dismiss this action for failure to comply with the directives set 9 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 12 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 13 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 14 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 15 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 16 action has been pending since August 14, 2020. Plaintiff’s failure to comply with the court’s 17 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court 18 cannot continue to expend its scarce resources assisting a litigant who will not resolve payment 19 of the filing fee for her lawsuit. Thus, both the first and second factors weigh in favor of 20 dismissal. 21 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 22 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 23 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 24 it is Plaintiff's failure to pay the filing fee or submit the appropriate application to proceed in 25 forma pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal. 26 As for the availability of lesser sanctions, at this stage in the proceedings there is little 27 available to the court which would constitute a satisfactory lesser sanction while protecting the 28 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 2 1 prisoner proceeding pro se who has not paid the filing fee for this action, the court finds monetary 2 sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence 3 or witnesses is not available. However, inasmuch as the dismissal being considered in this case 4 is without prejudice, the court is stopping short of issuing the harshest possible sanction of 5 dismissal with prejudice. 6 Finally, because public policy favors disposition on the merits, this factor will always 7 weigh against dismissal. Id. at 643. 8 III. CONCLUSION AND RECOMMENDATIONS 9 Based on the foregoing, the court HEREBY RECOMMENDS that this action be 10 dismissed, without prejudice, based on Plaintiff’s failure to obey the court’s order of October 8, 11 2020. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 14 (14) days from the date of service of these findings and recommendations, Plaintiff may file 15 written objections with the court. 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)). Such a document should be captioned “Objections to 20 In place of filing objections, Plaintiff may instead file the appropriate application to 21 proceed in forma pauperis for a non-prisoner within fourteen (14) days. The clerk shall be 22 directed to send the appropriate form application to Plaintiff with these findings and 23 recommendations. 24 25 26 27 IT IS SO ORDERED. Dated: January 6, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28 3

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