(PC) Smart v. Georgry et al

Filing 7

ORDER For the Clerk of Court to Randomly Assign a United States District Judge to This Action; FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey Court Order, signed by Magistrate Judge Gary S. Austin on 06/03/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON SMART, 12 13 14 15 1:21-cv-00457-GSA-PC Plaintiff, ORDER FOR THE CLERK OF COURT TO RANDOMLY ASSIGN A UNITED STATES DISTRICT JUDGE TO THIS ACTION vs. GEORGRY, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER (ECF No. 3.) Defendants. 16 17 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 18 19 20 21 22 Aaron Smart (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 23 filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 24 March 18, 2021. (ECF No. 1.) 25 On March 25, 2021, the court issued an order requiring Plaintiff to either submit an 26 application to proceed in forma pauperis or pay the $402.00 filing fee for this action, within 45 27 days. (ECF No. 3.) The 45-day time period has now expired and Plaintiff has not paid the filing 28 fee, submitted an application to proceed in forma pauperis, or otherwise responded to the court’s 1 1 order. Therefore, it will be recommended that this case be dismissed for Plaintiff’s failure to 2 comply with the court’s order. The Clerk shall be directed to randomly assign a United States 3 District Judge to this action. 4 In determining whether to dismiss this action for failure to comply with the directives set 5 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 9 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 11 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 12 action has been pending since March 18, 2021. Plaintiff’s failure to respond to the Court’s order 13 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 14 continue to expend its scarce resources assisting a litigant who will not respond to court orders 15 or resolve payment of the filing fee for his lawsuit. Thus, both the first and second factors weigh 16 in favor of dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 19 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 20 is Plaintiff’s failure to resolve payment of the filing fee for this case that is causing delay. 21 Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the Court which would constitute a satisfactory lesser sanction while protecting the 24 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 25 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 26 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 27 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 28 of dismissal with prejudice. 2 1 2 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. 5 6 7 The Clerk of Court shall randomly assign a United States District Judge to this action; and 2. The Court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff’s failure to obey the Court’s order issued on March 25, 2021. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after the date of service of these findings and recommendations, Plaintiff may file 11 written objections with the court. 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 14 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 15 (9th Cir. 1991)). Such a document should be captioned “Objections to 16 17 18 19 IT IS SO ORDERED. Dated: June 3, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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