Johnston v. Durkin ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 MELISSA JOY JOHNSTON, et al., Case No. 1:23-cv-00797-SAB 10 Plaintiffs, ORDER DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION 12 BRANDON DURKIN, et al., FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING DISMISSAL FOR Defendants. FAILURE TO SUBMIT APPLICATION TO 14 PROCEED IN FORMA PAUPERIS OR PAY THE FILING FEE 15 (ECF Nos. 2, 3) 16 FOURTEEN-DAY DEADLINE 17 18 19 Plaintiffs Melissa Joy Johnston and Sandra Lee Johnston (collectively 20 “Plaintiffs”) are proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. 21 Plaintiffs also submitted a single application to proceed in forma pauperis in this action. (ECF 22 No. 2.) Plaintiffs did not pay the filing fee in this action and instead filed an application to 23 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. (ECF No. 2.) On May 26, 24 2023, the Court denied the application, on the basis that it could not determine from the 25 information provided in the application whether Plaintiffs were entitled to proceed in this action 26 without the prepayment of fees. (ECF No. 3.) More specifically, the Court noted Plaintiffs only 27 submitted one application, but it was unclear which Plaintiff was applying for IFP status; moreover, the application was not completely filled out. Accordingly, the Court ordered 1 Plaintiffs to each either file a long form application to proceed IFP or pay the filing fee by June 2 26, 2023. (Id.) Further, the Court cautioned Plaintiff that failure to comply with its order would 3 result in dismissal of this action. (Id. at 2.) The deadline to file an application to proceed IFP or 4 pay the filing fee has expired and neither Plaintiff has submitted an IFP application, paid the 5 filing fee, requested an extension to do so, or submitted any other filings. 6 II. 7 LEGAL STANDARD 8 Local Rule 110 provides that “[f]ailure … of a party to comply with these Rules or with 9 any order of the Court may be grounds for imposition by the Court of any and all sanctions … 10 within the inherent power of the Court.” District courts have the inherent power to control their 11 dockets and “[i]n the exercise of that power they may impose sanctions including, where 12 appropriate, … dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). 13 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 14 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 15 Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 16 v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an 17 order requiring amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 18 (9th Cir. 1987) (dismissal for failure to comply with court order). 19 In determining whether to dismiss an action, the Court must consider several factors: (1) 20 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 22 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 23 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 24 III. 25 DISCUSSION 26 Here, any application to proceed in forma pauperis is overdue, neither Plaintiff has paid 27 the filing fee for this action, and Plaintiffs have failed to comply with the Court’s order. The 1 Court finds that both the first and second factors weigh in favor of dismissal. 2 The third factor, risk of prejudice to the defendant, also weighs in favor of dismissal, 3 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 4 action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs 5 against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 6 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 7 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 8 progress in that direction,” as here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 9 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 10 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 11 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 12 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s May 26, 2023 order 13 expressly warned Plaintiffs that their failure to comply with the Court’s order would result in a 14 dismissal of this action. (ECF No. 3.) Thus, Plaintiffs had adequate warning that dismissal 15 could result from their noncompliance. 16 Additionally, at this stage in the proceedings there is little available to the Court that 17 would constitute a satisfactory lesser sanction while protecting the Court from further 18 unnecessary expenditure of its scarce resources. Plaintiffs have not paid the filing fee, and will 19 likely attempt to proceed in forma pauperis in this action, apparently making monetary sanctions 20 of little use, and the preclusion of evidence or witnesses is likely to have no effect given that 21 Plaintiffs have ceased litigating their case. 22 IV. 23 ORDER AND FINDINGS AND RECOMMENDATION 24 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED to 25 randomly assign this matter to a District Judge. 26 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 27 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 1 These findings and recommendations are submitted to the district judge assigned to this 2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 3 | (14) days of issuance of this recommendation, Plaintiffs may file written objections to the findings and recommendations with the Court. Such a document should be captioned 5 | “Objections to Magistrate Judge’s Findings and Recommendations.” Alternatively, Plaintiffs 6 | may elect to pay the required filing fee. The district judge will review the magistrate judge’s 7 | findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiffs are advised that 8 | failure to file objections within the specified time may result in the waiver of rights on appeal. 9 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 10 | 1391, 1394 (9th Cir. 1991)). 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ June 30, 2023 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28