Doyle v. Marshal ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 THOMAS DOYLE, Case No. 1:19-cv-01435-NONE-SKO 13 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO 14 v. PROSECUTE AND OBEY THE COURT’S ORDERS 15 NOAH MARSHAL, et al., (Docs. 4, 7) 16 Defendants. OBJECTIONS DUE: 14 DAYS 17 _____________________________________/ 18 On October 11, 2019, Plaintiff, a prisoner proceeding pro se, filed a complaint against 19 20 Defendants, but failed to either pay the filing fee or file a motion to proceed in forma pauperis. 21 (See Doc. 1.) The Court entered an order on October 18, 2019, directing Plaintiff to either pay the 22 filing fee or file a motion to proceed in forma pauperis within thirty days of the date of service of 23 the order. (Doc. 2.) Plaintiff filed a motion to proceed in forma pauperis on October 29, 2019. 24 (Doc. 3.) 25 Upon preliminary review of Plaintiff’s complaint, Plaintiff’s allegations appeared to mostly 26 relate to his criminal conviction in state court and may be more appropriately brought in a petition 27 28 for habeas corpus. (See Doc. 1.) Accordingly, on November 21, 2019, the Court provided Plaintiff 1 2 complaint under 42 U.S.C. § 1983 clarifying that his claims were in fact brought under that section; 3 (2) a petition for habeas corpus under 28 U.S.C. § 2254; or (3) a notice of voluntary dismissal.1 4 (Id. at 7.) The Court warned Plaintiff that failure to comply with the order would “result in 5 recommendation to the assigned district judge that this case be dismissed for failure to comply with 6 a court order.” (Id. at 8.) Plaintiff failed to comply with the November 21, 2019 order and has not 7 complied to date. 8 On March 4, 2020, the Court entered an order to show cause directing Plaintiff to show cause 9 10 why the case should not be dismissed for his failure to comply with the November 21, 2019, order. 11 (Doc. 7.) The Court also warned Plaintiff that if he did not respond to the order to show cause, the 12 Court would “recommend to the presiding district court judge that this action be dismissed, in its 13 entirety.” (Id. at 2.) Plaintiff failed to respond to the order to show cause by the deadline and has 14 not filed a response to date.2 15 16 DISCUSSION 17 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 18 or with any order of the Court may be grounds for the imposition by the Court of any and all 19 sanctions . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. District courts have the 20 inherent power to control their dockets and “[i]n the exercise of that power they may impose 21 sanctions, including, where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 22 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 23 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., 24 1 The Court deferred ruling on Plaintiff’s motion to proceed in forma pauperis because the filing fee, which Plaintiff 25 would be responsible for paying in full even if the motion were granted, see 28 U.S.C. § 1915(b), would be substantially different depending on whether Plaintiff intended to bring a civil action ($350) or a habeas petition ($5), 26 see 28 U.S.C. § 1914(a). 2 The Clerk mailed the December 2, 2019 order to Plaintiff, but the order was returned as undeliverable on January 27 10, 2020. (See Docket.) On January 8, 2020, Plaintiff filed a notice of change of address, and the Clerk updated his address on the docket to “AZ-7224, North Kern State Prison (5004), P.O. Box 5004, Delano, CA 93216-9022.” (See 28 Doc. 5.) On January 13, 2020, the Clerk re-served Plaintiff with the order to show cause at his new address, (see 1 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 2 Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for failure to comply with local 3 rule requiring pro se plaintiff to keep court apprised of address); Malone v. U.S. Postal Service, 4 833 F.2d 128, 130–31 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 5 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and failure to 6 comply with local rules); Lopez v. Chase Home Fin., No. CVF09-0449 LJOGSA, 2009 WL 7 1098760, at *1 (E.D. Cal. Apr. 20, 2009) (dismissal of certain defendants for failure to comply 8 with court). 9 In determining whether to dismiss an action for failure to obey a court order or failure to 10 comply with the Local Rules, the court must consider several factors, including: “(1) the public’s 11 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 12 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 13 and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423–24; see also Ferdik, 14 963 F.2d at 1260–61; Thompson, 782 F.2d at 831. “The public’s interest in expeditious resolution 15 of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 16 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 17 Here, the Court finds that the public’s interest in expeditiously resolving this litigation and 18 the Court’s interest in managing the docket weigh in favor of dismissal, as it appears Plaintiff lacks 19 interest in pursuing this case. The third factor, risk of prejudice to Defendants, also weighs in favor 20 of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 21 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 22 factor—public policy favoring disposition of cases on their merits—is greatly outweighed by the 23 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that the failure 24 to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 25 requirement. Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424. 26 The November 21, 2019, order warned Plaintiff that failure to comply would result in a 27 recommendation that the action be dismissed. (Doc. 4 at 8.) The March 4, 2020, order to show 28 cause warned Plaintiff that if he did not respond to the order to show cause, the Court would 1 “recommend to the presiding district court judge that this action be dismissed, in its entirety.” (Doc. 2 7 at 2.) Thus, Plaintiff had adequate warning that sanctions, up to and including dismissal of the 3 case, would result from his noncompliance with the order to show cause. Plaintiff has shown a 4 lack of concern for the Court’s orders and a lack of interest in prosecuting the case. 5 In light of the foregoing, and pursuant to Local Rule 110 and the Court’s inherent sanction 6 authority, the undersigned RECOMMENDS that this case be dismissed without prejudice3 and 7 Plaintiff’s motion to proceed in forma pauperis, (Doc. 3), be denied as moot. 8 CONCLUSION AND RECOMMENDATION 9 For the reasons set forth above, IT IS HEREBY RECOMMENDED that this action be 10 DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to obey the Court’s orders of 11 November 21, 2019, (Doc. 4), and March 4, 2020, (Doc. 7), and Plaintiff’s failure to prosecute the 12 case. 13 The Court further DIRECTS the Clerk to send a copy of this order to Plaintiff at his address 14 listed on the docket for this matter. 15 These findings and recommendations are submitted to the district judge assigned to this 16 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 17 days of service of this recommendation, any party may file written objections to these findings and 18 recommendations with the Court and serve a copy on all parties. Such a document should be 19 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 20 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 21 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 22 waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 23 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 Sheila K. Oberto Dated: April 17, 2020 /s/ . 26 27 3 The Court recommends that the dismissal be without prejudice because Plaintiff at least complied with the order to either pay the filing fee or file a motion to proceed in forma pauperis, (see Docs. 2, 3), and only thereafter ceased 28 prosecuting the case. Thus, Plaintiff may later re-file the case as either a civil case or habeas action if desired and if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28