(PC)Montgomery v. CDCR Corrections Officer ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 PAULINE MONTGOMERY, Case No. 1:23-cv-00439-ADA-BAM (PC) 7 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 8 v. FOR FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 9 CDCR CORRECTIONS OFFICER, et al., (ECF No. 1) 10 Defendants. FOURTEEN (14) DAY DEADLINE 11 12 I. Background 13 Plaintiff Pauline Montgomery (“Plaintiff”) is a county jail inmate proceeding pro se in this 14 civil rights action under 42 U.S.C. § 1983. 15 On March 24, 2023, the Court issued an order striking the complaint for lack of signature 16 and directing Plaintiff to submit a completed application to proceed in forma pauperis or pay the 17 $402.00 filing fee to proceed with this action and to file a signed complaint, not to exceed 25 18 pages in length, or a notice of voluntary dismissal. (ECF No. 3.) The Court expressly warned 19 Plaintiff that failure to comply with the Court’s order would result in dismissal of this action. (Id. 20 at 2.) The Court granted Plaintiff an extension of time to June 12, 2023 to file the completed 21 documents, again warning Plaintiff that failure to comply with the Court’s order would result in 22 dismissal of this action. (ECF No. 8, p. 3.) The extended deadline has expired, and Plaintiff has 23 failed to respond to the Court’s orders. 24 II. Failure to Prosecute and Failure to Obey a Court Order 25 A. Legal Standard 26 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 27 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 28 within the inherent power of the Court.” District courts have the inherent power to control their 1 dockets and “[i]n the exercise of that power they may impose sanctions including, where 2 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 3 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 4 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 5 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 6 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 7 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 8 (dismissal for failure to comply with court order). 9 In determining whether to dismiss an action, the Court must consider several factors: 10 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 11 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 12 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 13 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 14 B. Discussion 15 Here, Plaintiff’s application to proceed in forma pauperis or payment of the filing fee, as 16 well as a signed complaint, are overdue and she has failed to comply with the Court’s order. The 17 Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court 18 finds that both the first and second factors weigh in favor of dismissal. 19 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 20 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 21 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 22 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 23 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 24 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 25 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 26 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 27 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 28 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 1 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s March 24, 2023 and May 10, 2 2023 orders expressly warned Plaintiff that her failure to comply with the Court’s orders would 3 result in dismissal of this action. (ECF No. 3, p. 2; ECF No. 8, p. 3.) Thus, Plaintiff had adequate 4 warning that dismissal could result from her noncompliance. 5 Additionally, at this stage in the proceedings there is little available to the Court that 6 would constitute a satisfactory lesser sanction while protecting the Court from further 7 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, or would be 8 proceeding in forma pauperis in this action, apparently making monetary sanctions of little use, 9 and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 10 ceased litigating the case. 11 III. Recommendation 12 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 13 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey Court orders 14 and for Plaintiff’s failure to prosecute this action. 15 These Findings and Recommendation will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 17 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 18 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 20 specified time may result in the waiver of the “right to challenge the magistrate’s factual 21 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 22 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: June 28, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28