Opinion
1:20-cv-00710-DAD-GSA-PC
07-23-2020
STARLINA FLEMING, Plaintiff, v. CDCR-CCWF, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER
(ECF No. 7.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS
I. BACKGROUND
Starlina Fleming ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 21, 2020, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1, 2.) Plaintiff's application to proceed in forma pauperis was not completed. (ECF No. 2.)
On page 2 of the application, Plaintiff answered "Yes" to question 3-e: "Have you received any money from the following sources over the last twelve months? However, Plaintiff did not respond to the second part of the question: "If the answer to any of the above is "yes," describe by that item each source of money. Also state the amount received and what you expect you will continue to receive (attach an additional sheet if necessary)."
On May 29, 2020, the court issued an order requiring Plaintiff to submit a new completed application to proceed in forma pauperis, or pay the filing fee for this action, within thirty days. (ECF No. 7.) The thirty-day time period has now expired and Plaintiff has neither filed a completed application to proceed in forma pauperis nor paid the filing fee for this action. Therefore, Plaintiff failed to comply with the court's May 29, 2020 order.
II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT 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 May 21, 2020. Plaintiff's failure to comply with the court's order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the court cannot continue to expend its scarce resources assisting a litigant who will not resolve payment of the filing fee for her 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 a completed 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 which 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 who has not paid the filing fee for 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. CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the court's order of May 29, 2020.
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). Within fourteen (14) days from the date of service of these findings and recommendations, 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.
Dated: July 23 , 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE