(PC)Ouphthame v. Frauenheim et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAJA OUPHTHAME,
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Plaintiff,
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vs.
SCOTT FRAUENHEIM, et al.,
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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
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ORDER FOR CLERK TO SEND
PLAINTIFF AN APPLICATION TO
PROCEED IN FORMA PAUPERIS FOR A
NON-PRISONER
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I.
BACKGROUND
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Laja Ouphthame (“Plaintiff”) is a former state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action
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on August 14, 2020. (ECF No. 1.)
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On August 20, 2020, the court issued an order for Plaintiff to either file an application to
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proceed in forma pauperis, or pay the $400.00 filing fee, within 30 days. (ECF No. 4.) The court
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provided Plaintiff with a form application to proceed in forma pauperis, however the form was
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not the appropriate form for a non-prisoner. (Id.) On September 16, 2020, Plaintiff submitted
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the application to proceed in forma pauperis which had been sent to her. (ECF No. 5.) But as
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noted above, the application was not on the appropriate form for a non-prisoner.
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On October 8, 2020, the court issued an order for Plaintiff to submit a new application to
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proceed in forma pauperis on the appropriate form for a non-prisoner, or to pay the $400.00 filing
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fee, within thirty days. (ECF No. 8.) The court provided Plaintiff with the appropriate form
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application for a non-prisoner. (Id.) The thirty-day time period has now expired and Plaintiff
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has not submitted the new application, paid the filing fee, or otherwise responded to the court’s
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order. Therefore, Plaintiff failed to comply with the court’s October 8, 2020 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 set
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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 639,
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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 August 14, 2020. Plaintiff’s failure to comply with 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 payment
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of the filing fee for her lawsuit. Thus, both the first and second factors weigh in favor of
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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 the appropriate application to proceed in
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forma pauperis 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 monetary
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sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence
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or witnesses is not available. However, inasmuch as the dismissal being considered in this case
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is without prejudice, the court is stopping short of issuing the harshest possible sanction of
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dismissal with prejudice.
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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 RECOMMENDATIONS
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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 October 8,
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2020.
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These findings and recommendations 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). Within fourteen
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(14) days from the date of service of these findings and recommendations, Plaintiff may file
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written objections with the court.
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Magistrate Judge’s Findings and Recommendations.” 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)).
Such a document should be captioned “Objections to
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In place of filing objections, Plaintiff may instead file the appropriate application to
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proceed in forma pauperis for a non-prisoner within fourteen (14) days. The clerk shall be
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directed to send the appropriate form application to Plaintiff with these findings and
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recommendations.
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IT IS SO ORDERED.
Dated:
January 6, 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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