(PC) Morales v. Shirley ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 GILBERT MORALES, Case No. 1:23-cv-00511-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO ACTION 12 HEATHER SHIRLEY, et al., FINDINGS AND RECOMMENDATION 13 RECOMMENDING DISMISSAL OF Defendants. ACTION 14 (ECF No. 3) 15 16 17 18 Plaintiff Gilbert Morales is proceeding pro se in this civil rights action filed pursuant to 42 19 U.S.C. § 1983. 20 On April 5, 2023, the Court severed this action from case number 1:23-cv-00470-BAM 21 (PC), Ricky L. Thomas v. Shirley, et al., and directed Plaintiff to file a signed complaint and pay 22 the $402.00 filing fee or submit an application to proceed in forma pauperis within forty-five 23 days. (ECF No. 1.) Plaintiff failed to comply with the Court’s order. Therefore, on May 30, 24 2023, the Court ordered Plaintiff to show cause why the action should not be dismissed. (ECF 25 No. 3.) The Court expressly warned Plaintiff that failure to comply with the Court's order would 26 result in a recommendation that this case be dismissed for failure to comply with a court order 27 and failure to prosecute. (Id.) The deadline has expired, and Plaintiff has failed to respond to the Court's order to show cause or otherwise communicate with the Court. 1 I. 2 LEGAL STANDARD 3 Local Rule 110 provides that “[f]ailure ... of a party to comply with these Rules or with 4 any order of the Court may be grounds for imposition by the Court of any and all sanctions ... 5 within the inherent power of the Court.” District courts have the inherent power to control their 6 dockets and “[i]n the exercise of that power they may impose sanctions including, where 7 appropriate, ... dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court 8 may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure 9 to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 10 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 11 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 12 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 13 (dismissal for failure to comply with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: (1) 15 the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its 16 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 17 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 18 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 19 II. 20 DISCUSSION 21 Here, Plaintiff's response to the Court's order to show cause is overdue and he has failed to 22 comply with the Court's order. The Court cannot effectively manage its docket if Plaintiff ceases 23 litigating his case. Thus, the Court finds that both the first and second factors weigh in favor of 24 dismissal. 25 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 26 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 27 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 1 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility 2 it is to move a case toward disposition on the merits but whose conduct impedes progress in that 3 direction,” which is the case here. In re Phenylpropanolamine (PPA) Products Liability 4 Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 5 Finally, the Court's warning to a party that failure to obey the court's order will result in 6 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 7 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court's May 30, 2023 order expressly 8 warned Plaintiff that his failure to comply with the Court's order would result in a 9 recommendation that this case be dismissed, without prejudice, for failure to comply with a court 10 order and failure to prosecute. (ECF No. 3.) Thus, Plaintiff had adequate warning that dismissal 11 could result from his noncompliance. 12 Additionally, at this stage in the proceedings there is little available to the Court that would 13 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 14 expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 15 apparently making monetary sanctions of little use, and the preclusion of evidence or witnesses 16 is likely to have no effect given that Plaintiff has ceased litigating his case. 17 III. 18 ORDER AND RECOMMENDATION 19 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 20 district judge to this action. 21 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 22 RECOMMENDS that this action be dismissed for failure to obey a Court order and for Plaintiff's 23 failure to prosecute this action. 24 This Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 26 (14) days after being served with this Findings and Recommendation, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge's 1 | specified time may result in the waiver of the “right to challenge the magistrate's [judge] factual 2 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IS SO ORDERED. FA. ee 6 Dated: _ June 23, 2023 " UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28