Opinion
1:23-cv-01164-GSA-PC
09-08-2023
DOUGLAS MURPHY, Plaintiff, v. FLEMING, et al., Defendants.
OBJECTIONS, IF ANY, DUE BY SEPTEMBER 29, 2023
ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT JUDGE TO THIS CASE
AND
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED FOR PLAINTIFF'S FAILURE TO COMPLY WITH COURT ORDER
(ECF NO. 7.)
GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
Douglas Murphy (“Plaintiff”) is a county jail inmate proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 26, 2023, at the United States District Court for the Eastern District of Pennsylvania. (ECF No. 2.) On August 4, 2023, the case was transferred to this court. (ECF Nos.4 & 5.)
On August 15, 2023, the Court issued an order requiring Plaintiff to either (1) submit an application to proceed in forma pauperis by a prisoner or (2) pay the $402.00 filing fee for this case on or before August 31, 2023. (ECF No. 7.) The August 31, 2023 deadline has passed, and Plaintiff has not paid the filing fee or submitted the appropriate application.
II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT'S ORDER
In determining whether to dismiss this action for failure to comply with the directives set forth in its order, “the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
“‘The public's interest in expeditious resolution of litigation always favors dismissal,'” id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has been pending since July 26, 2023. The Court cannot continue to expend its scarce resources assisting a litigant who will not resolve payment of the filing fee for his lawsuit. Thus, both the first and second factors weigh in favor of dismissal.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk that witnesses' memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to pay the filing fee or submit an appropriate application to proceed in forma pauperis that is causing delay. Therefore, the third factor weighs in favor of dismissal.
As for the availability of lesser sanctions, at this stage in the proceedings there is little available to the Court that would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a prisoner proceeding pro se in this action, the Court finds monetary sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice.
Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643.
III. ORDER, RECOMMENDATIONS, AND CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a United States District Judge to this case; and
The Court HEREBY RECOMMENDS that this case be dismissed based on Plaintiff's failure to comply with the Court's order issued on August 15, 2023.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). On or before September 29, 2023, Plaintiff may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.