Amps v. All Wrongdoers ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVARIS AMPS, Case No. 1:23-cv-01329-HBK 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 14 ALL WRONGDOERS, FAILURE TO PROSECUTE1 15 Defendant. FOURTEEN-DAY OBJECTION PERIOD 16 17 18 This matter comes before the Court upon periodic review. As more fully set forth below, 19 the undersigned recommends that the district court dismiss this case without prejudice due to 20 Plaintiff’s failure to prosecute this action. Specifically, Plaintiff did not pay the $402.00 fee, 21 move to proceed in forma pauperis, or timely respond to the Court’s order. 22 I. FACTS AND BACKGROUND 23 Plaintiff Travaris Amps is proceeding pro se in this civil action filed on September 7, 24 2023. (Doc. No. 1). Plaintiff did not pay the filing fee or file an application to proceed in forma 25 pauperis (“IFP”). (See docket). On September 8, 2023, the Court provided Plaintiff with 21 days 26 to either move to proceed IFP or pay the $402.00 filing fee. (Doc. No. 2). The Court enclosed an 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Ca. 2019). 1 application and cautioned Plaintiff that if he did not timely comply with the Court’s order, the 2 undersigned would recommend the case be dismissed. (Id.). As of the date of these Findings and 3 Recommendations, Plaintiff has not complied with the Court order and the time to do so has 4 expired. (See docket). 5 II. APPLICABLE LAW 6 All parties instituting any civil action, suit, or proceeding in a district court of the United 7 States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28 8 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only 9 if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 10 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 11 The court may dismiss an action where a party fails to pay the filing fee or otherwise move to 12 proceed in forma pauperis. In re Perroton, 958 F.2d 889, 890 (9th Cir. 1992) (affirming 13 dismissal of pro se litigant’s claim for failure to pay required filing fees). 14 Additionally, Federal Rule of Civil Procedure 41(b) permits courts to involuntarily 15 dismiss an action when a litigant does not prosecute an action or does not comply with a court 16 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 17 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 18 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 19 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 20 Rule 110 similarly permits courts to impose sanctions on a party who fails to comply with a court 21 order. “District courts have inherent power to control their dockets” and, in exercising that 22 power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., City 23 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 24 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 26 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 27 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 28 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 1 In determining whether to dismiss an action, the Court must consider several factors: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 5 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 6 III. ANALYSIS 7 Here, Plaintiff has not paid the filing fee for this action or applied to proceed in forma 8 pauperis. Thus, the district court may dismiss this action. In re Perroton, 958 F.2d at 890. 9 Alternatively, the district court may dismiss the action under Rule 41(b). The expeditious 10 resolution of litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. 11 California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). The Court’s need to efficiently 12 manage its docket cannot be overstated. This Court has “one of the heaviest caseloads in the 13 nation,” and due to the delay in filling judicial vacancies, which was exacerbated by the COVID- 14 19 pandemic, operates under a declared judicial emergency. See Amended Standing Order in 15 Light of Ongoing Judicial Emergency in the Eastern District of California. The Court’s time is 16 better spent on its other matters than needlessly consumed managing a case with a recalcitrant 17 litigant. Because the Court cannot effectively manage its docket if Plaintiff ceases litigating his 18 case the second factors weigh in favor of dismissal. 19 Delays inevitably have the inherent risk that evidence will become stale, or witnesses’ 20 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 21 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Plaintiff’s inaction amounts to an 22 unreasonable delay in prosecuting this action. Thus, the third factor, risk of prejudice to 23 defendant, also weighs in favor of dismissal since a presumption of injury arises from the 24 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 25 524 (9th Cir. 1976). 26 Finally, the fourth factor usually weighs against dismissal because public policy favors 27 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 28 “this factor lends little support to a party whose responsibility it is to move a case toward 1 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 2 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 3 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 4 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan, 291 F.3d at 5 644 (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice of 6 habeas petition where petitioner failed to timely respond to court order and noting “the weight of 7 the docket-managing factor depends upon the size and load of the docket, and those in the best 8 position to know what that is are our beleaguered trial judges.”). Further, “[c]ourts have an 9 independent obligation to determine whether subject-matter jurisdiction exists, even when no 10 party challenges it” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010), and the undersigned’s cursory 11 review of the pleading reveals it is deficient as it fails to provide any basis to invoke this Court’s 12 jurisdiction. (See generally Doc. No. 1). 13 Finally, a court’s warning to a party that failure to obey the court’s order will result in 14 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. This Court’s September 8, 2021, 16 Order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 17 a recommendation for dismissal of this action. (Doc. No. 2 at 1, ¶2). Thus, Plaintiff had adequate 18 warning that dismissal could result from his noncompliance. And the instant dismissal is a 19 dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 20 addressing the fifth factor. 21 After considering the factors set forth supra and binding case law, in the alternative, the 22 undersigned recommends dismissal, without prejudice. 23 Accordingly, it is ORDERED: 24 The Clerk of Court randomly assign this case to a district judge. 25 It is further RECOMMENDED: 26 This action be DISMISSED without prejudice. 27 //// 28 //// 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 Dated: _ October 6, 2023 Wiha Th fares Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28