(PC) Murphy v. Fleming

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS MURPHY, 1:23-cv-01164-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 FLEMING, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 BE DISMISSED FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT 17 ORDER 18 (ECF No. 7.) 19 OBJECTIONS, IF ANY, DUE BY SEPTEMBER 29, 2023 20 21 22 23 24 I. BACKGROUND 25 Douglas Murphy (“Plaintiff”) is a county jail inmate proceeding pro se with this civil 26 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action 27 on July 26, 2023, at the United States District Court for the Eastern District of Pennsylvania. 28 (ECF No. 2.) On August 4, 2023, the case was transferred to this court. (ECF Nos.4 & 5.) 1 On August 15, 2023, the Court issued an order requiring Plaintiff to either (1) submit an 2 application to proceed in forma pauperis by a prisoner or (2) pay the $402.00 filing fee for this 3 case on or before August 31, 2023. (ECF No. 7.) The August 31, 2023 deadline has passed, and 4 Plaintiff has not paid the filing fee or submitted the appropriate application. 5 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT’S ORDER 6 In determining whether to dismiss this action for failure to comply with the directives set 7 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 8 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 9 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 10 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 11 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 12 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 13 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 14 action has been pending since July 26, 2023. The Court cannot continue to expend its scarce 15 resources assisting a litigant who will not resolve payment of the filing fee for his lawsuit. Thus, 16 both the first and second factors weigh 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 pay the filing fee or submit an appropriate application to proceed in forma 21 pauperis that is causing delay. 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 that would constitute a satisfactory lesser sanction while protecting the 24 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 25 prisoner proceeding pro se in this action, the Court finds monetary sanctions of little use, and 26 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 27 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 28 the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 III. ORDER, RECOMMENDATIONS, AND CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 5 United States District Judge to this case; and 6 The Court HEREBY RECOMMENDS that this case be dismissed based on Plaintiff's 7 failure to comply with the Court’s order issued on August 15, 2023. 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). On or before 10 September 29, 2023, Plaintiff may file written objections with the Court. Such a document 11 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 12 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 13 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter 14 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: September 8, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28