Shin v. Gonsalez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JIN HYO SHIN, Case No. 1:22-cv-01544-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. FOR FAILURE TO COMPLY WITH COURT ORDER FAILURE TO 14 NANCY GONSALEZ, et al., PROSECUTE AND FAILURE TO PAY FILING FEE 15 Defendants. ORDER DIRECTING CLERK OF COURT 16 TO RANDOMLY ASSIGN DISTRICT JUDGE 17 (ECF No. 3) 18 OBJECTIONS DUE WITHIN FOURTEEN 19 DAYS 20 21 Jin Hyo Shin (“Plaintiff”), who is incarcerated and proceeding pro se, filed this civil 22 rights action pursuant to 42 U.S.C. § 1983 on December 1, 2022. (ECF No. 1.) Plaintiff did not 23 pay the filing fee and did not submit an application to proceed in forma pauperis. On December 24 22, 2022, the Court ordered Plaintiff to either submit an application to proceed in forma pauperis 25 or to pay the filing fee, within forty-five (45) days of entry of the order. (ECF No. 2.) Plaintiff 26 has not filed an application nor paid the filing fee by the deadline to do so. 27 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all 1 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 2 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 3 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 4 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 5 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 6 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 7 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 8 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 9 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 10 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 11 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 12 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 13 of prosecution and failure to comply with local rules). 14 In determining whether to dismiss an action for failure to comply with a pretrial order, 15 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 16 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 17 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 19 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 20 1986). These factors guide a court in deciding what to do, and are not conditions that must be 21 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 22 Litigation, 460 F.3d at 1226. 23 In this instance the public’s interest in expeditious resolution of the litigation and the 24 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff has neither filed an 25 application to proceed in forma pauperis, paid the filing fee, nor otherwise responded to the 26 Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 27 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 1 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 2 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 3 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 4 dismissal. 5 The public policy in favor of deciding cases on their merits is outweighed by the factors 6 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can 7 proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the 8 action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the 9 fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 10 Finally, a court’s warning to a party that their failure to obey the court’s order will result 11 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 12 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s December 22, 2022 order 13 requiring expressly stated: “Failure to comply with this order will result in dismissal of this 14 action.” (ECF No. 3 (emphasis in original).) Thus, Plaintiff had adequate warning that 15 dismissal of this action would result from noncompliance with the Court’s order. Further, 16 Plaintiff may still file an application to proceed in forma pauperis during the objection period 17 and the Court will consider the application. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for 2 | Plaintiff's failure to pay the filing fee or file an application to proceed in forma pauperis in this 3 | action, failure to abide by the Court’s order, and failure to prosecute. 4 These findings and recommendations are submitted to the district judge assigned to this 5 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 6 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 7 | and recommendations with the court. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 9 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 10 | Plaintiff is advised that failure to file objections within the specified time may result in the 11 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 12 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS FURTHER ORDERED that the Clerk of the Court be DIRECTED to randomly 14 | assign a District Judge to this action. 15 16 IT IS SO ORDERED. DAM Le 17 | Dated: _March 8, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28