(PC) Harris v. Brunk ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARVIN HARRIS, Case No. 1:22-cv-00302-AWI-CDB (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS CASE WITHOUT PREJUDICE 12 v. FOR PLAINTIFF’S FAILURE TO COMPLY WITH A COURT ORDER AND TO 13 D. BRUNK, et al., PROSECUTE THIS CASE 14 Defendants. (ECF No. 11) 15 FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Marvin Harris is a state prisoner proceeding pro se in this civil rights action filed 18 under 42 U.S.C. § 1983. On March 15, 2022, Plaintiff initiated this action by filing a complaint 19 asserting a First Amendment retaliation claim against Defendants. (ECF No. 1.) 20 On October 13, 2022, the Court ordered Plaintiff to submit a completed and signed 21 application to proceed in forma pauperis or pay the $402.00 filing fee for this action within thirty 22 days. (ECF No. 11.) The deadline passed, and Plaintiff failed to submit an IFP application or 23 pay the filing fee. The Court advised Plaintiff: “No requests for extension of time will be 24 granted without a showing of good cause. Failure to comply with this order may result in a 25 recommendation for the dismissal of this action.” (Id. at 3.) 26 Because of Plaintiff’s failure to comply with this order and advance the litigation, the 27 Court finds it appropriate to recommend entry of an order dismissing this action without 28 prejudice for failure to comply with a court order and failure to prosecute. 1 Local Rule 110, corresponding with Federal Rule of Civil Procedure 11, provides: 2 “Failure of counsel or of a party to comply with . . . any order of the Court may be grounds for 3 imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 4 L.R. 110. “District courts have inherent power to control their dockets” and, in exercising that 5 power, may impose sanctions, including dismissal of an action. Thompson v. Hous. Auth., City 6 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 7 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 8 Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with 9 a court order to amend a complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130-31 (9th Cir. 10 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 11 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 12 In determining whether to dismiss an action for failure to comply with a court order or 13 failure to prosecute, “the Court must weigh the following factors: (1) the public’s interest in 14 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 15 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 16 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 17 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 18 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 19 Pagtalunan, 291 F.3d at 642 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 20 1999)). Accordingly, the first factor weighs in favor of dismissal. 21 With respect to the Court’s need to manage its docket, “[t]he trial judge is in the best 22 position to determine whether the delay in a particular case interferes with docket management 23 and the public interest . . . . It is incumbent upon the Court to manage its docket without being 24 subject to routine noncompliance of litigants . . . .” Pagtalunan, 291 F.3d at 642. Here, 25 Plaintiff’s failure to submit an application to proceed in forma pauperis or pay the filing fee as 26 ordered by the Court, is consuming the Court’s limited time. It is also delaying resolution of this 27 case and interfering with docket management. Therefore, the second factor weighs in favor of 28 dismissal. 1 As to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 2 itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay inherently 3 increases the risk that witnesses’ memories will fade and evidence will become stale.” Id. at 643. 4 Because Plaintiff’s failure to comply with the Court’s order has stalled this litigation, the third 5 factor weighs in favor of dismissal. 6 Lesser sanctions than dismissal would not be satisfactory to protect the Court from 7 further unnecessary expenditure of its scarce resources. Considering Plaintiff’s incarceration and 8 applications in other actions to gain in forma pauperis status (ECF No. 11 at p. 2 n.1), monetary 9 sanctions would be ineffective. Plaintiff seemingly has decided to stop prosecuting this case, so 10 excluding evidence would be a meaningless sanction. Additionally, the dismissal being 11 considered in this case is without prejudice, stopping short of the harshest possible sanction of 12 dismissal with prejudice. 13 Finally, because public policy favors disposition on the merits, this factor weighs against 14 dismissal. Id. (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). 15 After weighing the factors, the Court finds that dismissal without prejudice is 16 appropriate. 17 Accordingly, it is HEREBY RECOMMENDED: 18 1. This case be dismissed without prejudice for Plaintiff’s failure to comply with a 19 court order and to prosecute this case; and 20 2. The Clerk of Court be directed to close this case. 21 These findings and recommendations will be submitted to the United States District 22 Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 23 (14) days after being served with these findings and recommendations, any party may file 24 written objections with the Court and serve a copy on all parties. Such a document should be 25 captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff’s 26 / / / 27 / / / 28 1 | failure to file objections within the specified time may result in waiver of his rights on appeal. 2 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 3 | 1391, 1394 (9th Cir. 1991)). + | IT IS SO ORDERED. ° Dated: _ November 14, 2022 | hr Rr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28