(PC) Clemons, Jr. v. Warden

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL D. CLEMONS, ) Case No.: 1:22-cv-00127-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 WARDEN, ) ) FINDINGS AND RECOMMENDATIONS 15 Defendant. ) RECOMMENDING DISMISSAL OF ACTION ) 16 ) 17 Plaintiff Michael D. Clemons is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983 . 19 I. 20 BACKGROUND 21 Plaintiff filed a complaint in this action on January 21, 2022. (ECF No. 1.) As Plaintiff did not 22 pay the filing fee or submit an application to proceed in this action in forma pauperis, on February 2, 23 2022, an order directing Plaintiff to either pay the filing fee or submit an application to pay the filing 24 fee within forty-five days. (ECF No. 7.) Plaintiff failed to respond to the Court’s February 2, 2022 25 order. Therefore, on March 28, 2022, the Court ordered Plaintiff to show cause within fourteen days 26 why the action should not be dismissed. (ECF No. 9.) Plaintiff has not responded to the order to show 27 cause and the time to do so has passed. Accordingly, dismissal is warranted. 28 /// 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 the 5 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 6 the exercise of that power they may impose sanctions including, where appropriate,...dismissal.” 7 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 action, 9 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 10 52 , 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 11 1258 , 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 12 complaint); Malone v. U.S. Postal Serv., 833 F.2d 128 , 130–33 (9th Cir. 1987) (dismissal for failure to 13 comply with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: (1) the 15 public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) 16 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 17 merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421 , 1423 18 (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 filing 22 fee for this action, and he has failed to comply with the Court's order. The Court cannot effectively 23 manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and 24 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 28 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639 , 1 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to 2 move a case toward disposition on the merits but whose conduct impedes progress in that direction,” 3 which is the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217 , 4 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 March 28, 2022 order expressly 8 warned Plaintiff that his failure to comply with the Court's order would result in a recommendation to 9 dismiss the action. (ECF No. 9.) Thus, Plaintiff had adequate warning that dismissal could result from 10 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 the 15 preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating 16 his case. 17 IV. 18 CONCLUSION AND RECOMMENDATION 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 order, 23 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) days 26 after being served with these Findings and Recommendation, Plaintiff may file written objections with 27 the Court. The document should be captioned “Objections to Magistrate Judge's Findings and 28 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 1 || result in the waiver of the “right to challenge the magistrate's factual findings” on appeal. Wilkerson □ 2 || Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 3 |} 1991)). [4] 5 IT IS SO ORDERED. Al fe 6 Dated: _ April 20, 2022 OF 7 UNITED STATES MAGISTRATE JUDGE