Fox v. Tulare County HHSA/CPS ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN FOX, Case No. 1:22-cv-00009-DAD-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 13 v. ACTION, WITHOUT PREJUDICE 14 TULARE COUNTY HHSA/CPS, (ECF No. 8) 15 Defendant. FOURTEEN-DAY DEADLINE 16 17 Shawn Fox (“Plaintiff”) is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 I. 20 BACKGROUND 21 On January 3, 2022, Plaintiff filed a complaint in this action. (ECF No. 1.) Along with 22 Plaintiff’s complaint, he filed an unsigned application to proceed in forma pauperis. (ECF No. 23 3.) The Court struck the unsigned filing and ordered Plaintiff to file a fully completed 24 application within thirty days or pay the filing fee. (ECF No. 4.) On January 18, 2022, Plaintiff 25 filed his second application to proceed in forma pauperis. (ECF No. 5.) The Court struck this 26 application as well because it was not signed by an authorized officer of the institution at which 27 Plaintiff is currently incarcerated and Plaintiff did not attach a copy of his trust account statement. (ECF No. 6.) On February 1, 2022, Plaintiff filed his third application to proceed in 1 forma pauperis. (ECF No. 7.) The Court denied this application because it once again was not 2 properly completed, as the certificate regarding Plaintiff’s inmate account had not been 3 completed, nor had Plaintiff attached a certified copy of his trust account statement showing 4 transactions for the past six months, as required. (ECF No. 8.) The Court provided Plaintiff 5 thirty days to submit a compliant application to proceed in forma pauperis but cautioned Plaintiff 6 that failure to do so would result in a recommendation that the case be dismissed. (Id.) 7 II. 8 LEGAL STANDARD 9 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 10 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 11 within the inherent power of the Court.” District courts have the inherent power to control their 12 dockets and “[i]n the exercise of that power they may impose sanctions including, where 13 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). 14 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 15 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 16 Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 17 v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an 18 order requiring amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 19 (9th Cir. 1987) (dismissal for failure to comply with court order). 20 In determining whether to dismiss an action, the Court must consider several factors: (1) 21 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 22 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 23 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 24 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 25 III. 26 DISCUSSION 27 Here, Plaintiff’s application to proceed in forma pauperis is overdue, he has not paid the 1 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that 2 both the first and second factors weigh in favor of dismissal. 3 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 4 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 6 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 7 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 8 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 9 progress in that direction,” as here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 10 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 11 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 12 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s February 2, 2022 order 14 expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 15 dismissal of this action. (ECF No. 8.) Thus, Plaintiff had adequate warning that dismissal could 16 result from his noncompliance. 17 Additionally, at this stage in the proceedings there is little available to the Court that 18 would constitute a satisfactory lesser sanction while protecting the Court from further 19 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, and will 20 likely attempt to proceed in forma pauperis in this action, apparently making monetary sanctions 21 of little use, and the preclusion of evidence or witnesses is likely to have no effect given that 22 Plaintiff has ceased litigating his case. 23 IV. 24 FINDINGS AND RECOMMENDATION 25 Based on the foregoing, the Court finds that dismissal is the appropriate sanction and 26 HEREBY RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a 27 Court order, failure to pay the filing fee, and for Plaintiff's failure to prosecute this action. 1 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 2 | fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 3 | file written objections with the Court. The document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file 5 | objections within the specified time may result in the waiver of the “right to challenge the 6 | magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 7 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED. DAA (e_ 10 | Dated: _ March 11, 2022 □ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28