Epperson v. State of California ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRIS EPPERSON, Case No. 1:19-cv-00743-LJO-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO PAY FILING FEE OR FILE APPLICATION TO PROCEED IN FORMA 14 STATE OF CALIFORNIA, et al., PAUPERIS, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE 15 Defendants. (Doc. No. 4) 16 FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Chris Epperson (“Plaintiff”), proceeding pro se, filed this action on March 28, 19 2019. (Doc. No. 1.) Plaintiff did not pay the filing fee in this action and instead filed an 20 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. No. 2.) However, 21 Plaintiff’s application to proceed in forma pauperis was not adequately completed and, on July 2, 22 2019, the Court ordered Plaintiff to submit a completed application to proceed in forma pauperis 23 or pay the applicable filing fee within thirty (30) days. (Doc. No. 4.) The relevant time period for 24 Plaintiff to respond to the Court’s order has expired and Plaintiff has not filed an application to 25 proceed in forma pauperis, paid the filing fee, or otherwise responded to the Court’s order. 26 I. Discussion 27 District courts have the inherent power to control their dockets and “[i]n the exercise of 28 that power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v. 1 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, 2 based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply 3 with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for 4 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) 5 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 6 Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to comply with court 7 order). 8 In determining whether to dismiss an action, the Court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 10 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 12 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988); see also In 13 re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 14 (standards governing dismissal for failure to comply with court orders). These factors guide a 15 court in deciding what to do and are not conditions that must be met in order for a court to take 16 action. In re PPA, 460 F.3d at 1226 (citation omitted). 17 The Court finds that the public’s interest in expeditious resolution of litigation and the 18 Court’s need to manage its docket weigh in favor of dismissal. This action has been pending 19 since May 2019 and can proceed no further without Plaintiff’s cooperation and compliance with 20 the Court’s order. Moreover, the matter cannot simply remain idle on the Court’s docket, 21 unprosecuted, awaiting Plaintiff’s compliance. Indeed, a civil action may not proceed absent the 22 submission of either the filing fee or an application to proceed in forma pauperis. 28 U.S.C. 23 §§ 1914, 1915. As for the risk of prejudice to defendants, a presumption of injury arises from any 24 unreasonable delay in prosecuting an action. In re PPA, 460 F.3d at 1227–28; Anderson v. Air 25 West, 542 F.2d 522, 524 (9th Cir. 1976). Regarding the fourth factor, while public policy favors 26 disposition on the merits and therefore weighs against dismissal, it is Plaintiff’s own conduct 27 which is at issue here and which has stalled the case. In re PPA, 460 F.3d at 1228. Finally, there 28 are no alternative sanctions which are satisfactory. A monetary sanction has little to no benefit in 1 a case in which Plaintiff has ceased responding to the Court’s orders. Further, Plaintiff was 2 warned that his failure to submit an application to proceed in forma pauperis or pay the filing fee 3 would result in a recommendation to dismiss this action. (Doc. No. 4.) A warning that the failure 4 to obey a court order will result in dismissal can meet the consideration of alternatives 5 requirement. In re PPA, 460 F.3d at 1229; Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; 6 Henderson, 779 F.2d at 1424. 7 II. Conclusion and Reccommendation 8 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 9 prejudice, for Plaintiff’s failure to pay the filing fee or file an application to proceed in forma 10 pauperis, failure to obey a Court order, and failure to prosecute. 11 These findings and recommendations will be submitted to the United States District Judge 12 assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(l) and Local Rule 304. 13 Within fourteen (14) days after being served with these findings and recommendations, Plaintiff 14 may file written objections with the Court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of the “right to challenge the 17 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 18 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: August 15, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28