(PC) Minor v. Mimms ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY RAY MINOR, 1:22-cv-01612-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN TO DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 MARGARET MIMMS, TO DISMISS ACTION FOR FAILURE TO OBEY COURT ORDER AND FAILURE 15 Defendant. TO PROSECUTE 16 14-DAY DEADLINE 17 18 19 Plaintiff Anthony Ray Minor initiated this action by filing a pro se civil rights complaint 20 under 42 U.S.C. § 1983 on December 15, 2022, while detained in the Fresno County Jail. (Doc. 21 No. 1). For the reasons set forth below, the undersigned recommends the District Court dismiss 22 this action for Plaintiff’s failure to comply with a court order and/or prosecute this action. 23 BACKGROUND 24 Plaintiff accompanied his pro se complaint with an application to proceed in forma 25 pauperis. (Doc. No. 3). On January 4, 2023, the Court denied Plaintiff’s application to proceed 26 in forma pauperis without prejudice because it did not comply with § 1915(a)(1)(2) and ordered 27 Plaintiff to resubmit a completed application or pay the $402.00 filing fee within 21 days. (Doc. 28 No. 5). The Court warned Plaintiff a recommendation to dismiss the case for failure to prosecute 1 and/or comply with a court order would issue if he failed to timely comply with the Court’s 2 Order. (Id., at ¶ 5). The Order was mailed to Plaintiff and not returned. (See docket entry dated 3 January 4, 2023). On February 15, 2023, after Plaintiff failed to timely comply with the January 4 4, 2023 Order, the Court issued a Show Cause Order. (Doc. No. 6). The Show Cause Order was 5 returned to the Court as “undeliverable.” (See docket entry dated March 16, 2023). 6 APPLICABLE LAW AND ANALYSIS 7 A. Legal Standard 8 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 9 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 10 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 11 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 12 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 13 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 14 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 15 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 16 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 17 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 18 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 19 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 20 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 21 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 22 to comply with local rules). 23 In determining whether to dismiss an action, the Court must consider several factors: 24 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 25 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 26 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 27 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 28 //// 1 B. Analysis 2 The undersigned considers each of the above-stated factors and concludes dismissal is 3 warranted in this case. The January 4, 2023 explained to Plaintiff why his application to proceed 4 in forma pauperis was deficient and advised Plaintiff that he would need to submit a completed 5 application to proceed in forma pauperis or pay the filing fee in order within 21 days to proceed 6 with this action. (Doc. 5 at 1, ¶ 2). To date Plaintiff has failed to comply with the January 4, 7 2023 Order and time for doing so has expired. 8 As to the first factor, the expeditious resolution of litigation is deemed to be in the public 9 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 10 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 11 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 12 judicial vacancies, which is further exacerbated by the COVID-19 pandemic, operates under a 13 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 14 Emergency in the Eastern District of California. The Court’s time is better spent on its other 15 matters than needlessly consumed managing a case with a recalcitrant litigant. Because the Court 16 cannot effectively manage its docket if Plaintiff ceases litigating her case. Thus, the Court finds 17 that both the first and second factors weigh in favor of dismissal. 18 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 19 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 20 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 21 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 22 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 23 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 24 action, weighing in favor of dismissal for a risk of prejudice to defendants. 25 Finally, the fourth factor usually weighs against dismissal because public policy favors 26 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 27 “this factor lends little support to a party whose responsibility it is to move a case toward 28 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 1 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 2 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 3 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan, 291 F.3d at 4 644. Here Plaintiff has not paid the filing fee nor submitted a proper application to proceed in 5 forma pauperis in this action. 6 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 7 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 8 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The January 4, 2023 Order expressly 9 warned Plaintiff that his failure to comply with the Court’s Order would result in a 10 recommendation of dismissal of this action. (Doc. No. 5 at 2, ¶4). Thus, Plaintiff had adequate 11 warning that dismissal could result from his noncompliance. The Court attempted to afford 12 Plaintiff an opportunity to cure his noncompliance, but the Court’s Show Cause Order was 13 returned as undeliverable. Thus, it would be futile to issue any further orders to try to gain 14 Plaintiff’s compliance. Finally, the instant dismissal is a dismissal without prejudice, which is a 15 lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 16 After considering the factors set forth supra and binding case law, the undersigned 17 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 18 ACCORDINGLY, it is ORDERED: 19 The Clerk of Court shall assign this case to a district judge for consideration of these 20 Findings and Recommendations. 21 It is further RECOMMENDED: 22 This action be DISMISSED without prejudice for Plaintiff’s failure to obey court order 23 and failure to prosecute this action, all motions be terminated and the case closed. 24 NOTICE 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 27 of the date of service of these Findings and Recommendations, Plaintiff may file written 28 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Plaintiffs failure to file objections within the specified time 2 | may result in waiver of her rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 > | Dated: _ April 4, 2023 Mihaw. □□□ foareA Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28