(PC) Hill v. Her ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CYMEYON HILL, No. 2: 22-cv-1849 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 HER, et al., 15 Defendants. 16 17 Plaintiff is a civil detainee, proceeding without counsel, with a civil rights action. For the 18 reasons stated herein, the undersigned recommends that this action be dismissed based on 19 plaintiff’s failure to respond to the February 16, 2023 order directing plaintiff to file further 20 briefing in support of his application to proceed in forma pauperis. 21 On December 8, 2022, the undersigned recommended that plaintiff’s application to 22 proceed in forma pauperis be denied. (ECF No. 10.) On February 10, 2023, the Honorable 23 Kimberly J. Mueller declined to adopt the December 8, 2022 findings and recommendations. 24 (ECF No. 12.) Judge Mueller found that the undersigned applied an incorrect standard in 25 evaluating plaintiff’s application to proceed in forma pauperis. (Id.) 26 In accordance with Judge Mueller’s February 10, 2023, order, on February 16, 2023, the 27 undersigned ordered plaintiff to file further briefing in support of his application to proceed in 28 forma pauperis. (ECF No. 13.) In particular, the undersigned ordered plaintiff to address: 1) the 1 source of the funds for the initial balance in his inmate trust account on April 1, 2022; 2) the 2 source(s) of the three deposits to his inmate trust account on April 20, 2022, and whether he 3 receives income regularly from these sources; and 3) the source of the $200 deposit made via 4 JPAY on June 14, 2022. (Id. at 4-5.) The undersigned ordered plaintiff to file this briefing within 5 fourteen days. (Id. at 5.) 6 On March 20, 2023, the February 16, 2023 order was returned unserved. On March 23, 7 2023, the Clerk of the Court reserved the February 16, 2023 order. The reserved ordered was not 8 returned.1 Twenty-one days passed from March 23, 2023, and plaintiff did not file the further 9 briefing as ordered. 10 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 11 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 12 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 13 court order the district court must weigh five factors including: ‘(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 the defendants; (4) the public policy favoring disposition of cases on their merits; 16 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 17 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 18 F.3d 52, 53 (9th Cir. 1995). 19 In determining to recommend that this action be dismissed, the undersigned considers the 20 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors support dismissal of this 21 action. The court cannot evaluate plaintiff’s application to proceed in forma pauperis without the 22 information discussed in the February 16, 2023 order. This action cannot proceed until the court 23 is able to rule on plaintiff’s application to proceed in forma pauperis. Plaintiff’s failure to 24 respond to the February 16, 2023 delays resolution of this action and interferes with the court’s 25 1 The Clerk of the Court did not include plaintiff’s unit number at Patton State Hospital in 26 plaintiff’s address on the order served February 16, 2023, and returned unserved on March 20, 27 2023. The address on which the Clerk of the Court reserved plaintiff with the February 16, 2023 order on March 23, 2023, included plaintiff’s unit number at Patton State Hospital. This re- 28 served order has not been returned. 1 | ability to manage its docket. 2 Because no defendants have yet been served, the undersigned cannot evaluate prejudice to 3 || defendants. 4 The fifth factor also favors dismissal. The undersigned granted plaintiff adequate 5 || opportunity to respond to the February 16, 2023 order. As stated above, this action cannot 6 || proceed until the court is able to evaluate plaintiff's in forma pauperis application. For these 7 || reasons, the undersigned finds no suitable alternative to dismissal of this action. 8 The fourth factor, public policy favoring disposition of cases on their merits, weighs 9 | against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 10 || second and fifth factors strongly support dismissal. Under the circumstances of this case, those 11 | factors outweigh the general public policy favoring disposition of cases on their merits. See 12 || Ferdik, 963 F.2d at 1263. 13 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 || after being served with these findings and recommendations, plaintiff may file written objections 17 || with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 19 | failure to file objections within the specified time may waive the right to appeal the District 20 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 21 || Dated: April 28, 2023 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 25 26 4 Hill1849.fr 28