(PC) Harris v. Cisneros ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARVIN HARRIS, 1:22-cv-01213-JLT-CDB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 v. TO DISMISS FOR PLAINTIFF’S FAILURE TO PROSECUTE AND TO OBEY COURT 12 THERESA CISNEROS, ORDER 13 Defendant. 14 15 RELEVANT BACKGROUND 16 Plaintiff Marvin Harris initiated this action with the filing of his complaint, brought 17 pursuant to 42 U.S.C. § 1983, on September 26, 2022. (Doc. 1.) 18 On September 28, 2022, this Court issued its Order to Submit Application to Proceed In 19 Forma Pauperis or Pay Filing Fee Within, directing Plaintiff to submit a completed and signed 20 application to proceed in forma pauperis (IFP), or, alternatively, to pay the $402 filing fee for this 21 action within 45 days. (Doc. 5.) In the order, Plaintiff was warned: “No requests for extension 22 will be granted without a showing of good cause. Failure to comply with this order will 23 result in dismissal of this action.” (Id., emphasis in original.) 24 More than 45 days have passed, and Plaintiff has neither submitted an IFP application nor 25 paid the filing fee. 26 DISCUSSION 27 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 28 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may 1 be grounds for the imposition by the Court of any and all sanctions authorized by statute or Rule 2 or within the inherent power of the Court.” Local Rule 110. “District courts have inherent power 3 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 4 of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) 5 (per curiam), cert. denied, 429 U.S. 829 (1986). A court may dismiss an action based on a party’s 6 failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court 8 order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) 9 (dismissal for failure to comply with a court order), cert denied, 488 U.S. 819 (1988); Henderson 10 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply 11 with local rules). 12 In determining whether to dismiss an action for failure to comply with a court order or for 13 a 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 639, 17 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61). 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 Regarding the Court’s need to manage its docket, “[t]he trial judge is in the best position 22 to determine whether the delay in a particular case interferes with docket management and the 23 public interest .... It is incumbent upon the Court to manage its docket without being subject to 24 routine noncompliance of litigants ....” Pagtalunan, 291 F.3d at 642. Here, Plaintiff’s failure to 25 file an application to proceed IFP or, alternatively, to pay the required filing fee, is consuming the 26 Court’s limited time. Further, it is also delaying resolution of this case and interfering with docket 27 management. Therefore, the second factor weighs in favor of dismissal. 28 As to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 1 itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 2 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 3 will become stale.” Id. at 643; see also In re Phenylpropanolamine (PPA) Products Liability 4 Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted) (“this factor lends little support 5 to a party whose responsibility it is to move a case toward disposition on the merits but whose 6 conduct impedes progress in that direction”). Because Plaintiff’s failure to comply with the 7 Court’s order has stalled this litigation, the third factor weighs in favor of dismissal. 8 Next, the Court considers the availability of less drastic alternatives. Ferdik, 963 F.2d at 9 1262. Here, lesser sanctions than dismissal would not be satisfactory to protect the Court from 10 further unnecessary expenditure of its scarce resources. Considering Plaintiff's incarceration, 11 monetary sanctions would be ineffective. Plaintiff seemingly has decided to stop prosecuting this 12 case, so excluding evidence would be a meaningless sanction. Additionally, the dismissal being 13 considered in this case is without prejudice, stopping short of the harshest possible sanction of 14 dismissal with prejudice. Hence, the fourth factor also weighs in favor of dismissal. 15 Finally, because public policy favors disposition on the merits, this factor weighs against 16 dismissal. Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 17 (9th Cir. 1998)). 18 After weighing the five factors, the Court finds that dismissal without prejudice is 19 appropriate. 20 CONCLUSION AND RECOMMENDATIONS 21 For the reasons given above, the Court RECOMMENDS that this action be 22 DISMISSED, without prejudice, for Plaintiff’s failure to prosecute and failure to obey a court 23 order. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 26 of the date of service of these Findings and Recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 1 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 | ITIS □□ ORDERED. 4 Dated: _ November 16, 2022 | Mw V Kr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28