(PC) Ulrich v. Merced County District Attorney's Office ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WAYNE ULRICH, Case No. 1:23-cv-00612-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 11 v. JUDGE TO THIS ACTION 12 MERCED COUNTY DISTRICT FINDINGS AND RECOMMENDATIONS ATTORNEY’S OFFICE, et al., RECOMMENDING DISMISSAL OF 13 ACTION Defendants. 14 (ECF No. 6) 15 16 Plaintiff Wayne Ulrich is proceeding pro se in this civil rights action filed pursuant to 42 17 U.S.C. § 1983. 18 I. 19 BACKGROUND 20 Plaintiff filed the instant action on March 29, 2023. On April 21, 2023, the Court issued 21 an order directing Plaintiff to submit an application to proceed in forma pauperis or pay the 22 $402.00 filing fee within 45 days. (ECF No. 5.) Plaintiff has failed to respond to the Court’s 23 order and the time to do so has passed. Accordingly, on June 15, 2023, Plaintiff was ordered to 24 show cause why the action should not be dismissed. (ECF No. 6.) Plaintiff has failed to respond 25 to the order to show cause and the time to do so has passed. Accordingly, dismissal of the action 26 is warranted. 27 /// /// 1 II. 2 LEGAL STANDARD 3 Local Rule 110 provides that “[f]ailure...of a party to comply with these Rules or with any 4 order of the Court may be grounds for imposition by the Court of any and all sanctions...within 5 the inherent power of the Court.” District courts have the inherent power to control their dockets 6 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). 8 A court may dismiss an action, with prejudice, based on a party's failure to prosecute an 9 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 10 Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 11 v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an 12 order requiring amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 13 (9th Cir. 1987) (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 III. 20 DISCUSSION 21 Here, Plaintiff's application to proceed in forma pauperis is overdue, he has not paid the 22 filing fee for this action, and he has failed to comply with the Court’s order. The Court cannot 23 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that 24 both the first and second factors weigh in favor of 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 2 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 3 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 4 Liability 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 June 15, 2023 order expressly 8 warned Plaintiff that his failure to comply with the Court’s order would result in a 9 recommendation to dismiss the action. (ECF No. 6.) Thus, Plaintiff had adequate warning that 10 dismissal could result from his noncompliance. 11 Additionally, at this stage in the proceedings there is little available to the Court that would 12 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 13 expenditure of its scarce resources. Plaintiff has not paid the filing fee, and will likely attempt to 14 proceed in forma pauperis in this action, apparently making monetary sanctions of little use, and 15 the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has ceased 16 litigating his case. 17 IV. 18 CONCLUSION AND RECOMMENDATIONS 19 Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly 20 assign a 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, without prejudice, for failure to obey a Court 23 order, failure to pay the filing fee, and failure to prosecute this action. 24 These Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with these Findings and Recommendations, 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 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: _ July 11, 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