(PC) Roberts v. Kern Valley State Prison et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, Without Prejudice, for Plaintiff's Failure to Comply with Court Order, signed by Magistrate Judge Gary S. Austin on 05/06/2023. Referred to Judge De Alba. Objections to F&R due by 5/26/2023. (Maldonado, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID NATHANIEL ROBERTS,
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Plaintiff,
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v.
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KERN VALLEY STATE PRISON,
et al.,
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1:22-cv-01505-ADA-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITHOUT PREJUDICE, FOR
PLAINTIFF’S FAILURE TO COMPLY WITH
COURT ORDER
(ECF No. 18.)
Defendants.
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OBJECTIONS, IF ANY, DUE ON OR BEFORE
MAY 26, 2023
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I.
David Nathaniel Roberts (“Plaintiff”) is a state prisoner proceeding pro se with this civil
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BACKGROUND
rights action pursuant to 42 U.S.C. § 1983.
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On March 21, 2023, the Court issued an order revoking Plaintiff’s in forma pauperis
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status under 28 U.S.C. § 1915(g) and requiring Plaintiff to pay the $402.00 filing fee for this case
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in full within 30 days. (ECF No. 18.) To date, Plaintiff has not paid the filing fee or otherwise
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responded to the Court’s order, and the time for doing so has passed.
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II.
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 September 12, 2022. Plaintiff’s failure to respond to the Court’s
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order may reflect Plaintiff’s refusal or inability to pay the filing fee. However, the Court cannot
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continue to expend its scarce resources assisting a litigant who will not comply with the Court’s
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orders. Thus, both the first and second factors weigh in favor of 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 it
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is Plaintiff’s failure to pay the filing fee for this case that is causing delay. Therefore, the third
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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. Monetary sanctions in this
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circumstance are of little use, and given the early stage of these proceedings, the preclusion of
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evidence or witnesses is not available. However, inasmuch as the dismissal being considered in
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this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction
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of 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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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed,
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without prejudice, based on Plaintiff’s failure to obey the Court’s order of March 21, 2023. These
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findings and recommendations are submitted to the United States District Judge assigned to the
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case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before May 26, 2023,
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Plaintiff may file written objections with the Court. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that
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failure to file objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
May 6, 2023
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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