Moten v. Allison

Filing 23

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED WITHOUT PREJUDICE; Clerk of Court be directed to CLOSE this action; re 1 Complaint filed by Jesse T. Moten ; referred to Judge Ishii, signed by Magistrate Judge Jennifer L. Thurston on 08/01/2012. Objections (14) Day Deadline (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE T. MOTEN,

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v.
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K. ALLISON,

Case No. 1:12-cv-00600 AWI JLT (PC)
Plaintiff, FINDINGS AND RECOMMENDATIONS
TO DISMISS PLAINTIFF’S
COMPLAINT FOR FAILURE TO
COMPLY WITH COURT ORDERS

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Defendants. (Doc. 22).
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. On February 17, 2012, Plaintiff filed a motion to proceed in forma pauperis,

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(Doc. 6). On April 20, 2012, the Magistrate Judge issued findings and recommendations to deny

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Plaintiff’s application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(g), as Plaintiff

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had previously filed at least three actions that were dismissed as either frivolous. (Doc. 15).

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The Order Adopting the Magistrate Judge’s Findings and Recommendations was issued

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and served on July 6, 2012. (Doc. 22). The Order Adopting the Findings and Recommendations

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ordered Plaintiff to pay the filing fee in full within 14 days of service of the Court’s order and

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cautioned him that the failure to comply would result in a dismissal of his entire matter. (Doc. 22

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at 3). Despite the Court’s order, Plaintiff has failed to pay the filing fee in full as required. For

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the reasons set forth below, the Court recommends Plaintiff’s action be dismissed.

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I.

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“District courts have inherent power to control their dockets,” and in exercising that

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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing

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Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with

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prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995)

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(dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

Discussion and Analysis

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors,

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including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson,

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779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the

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occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance based

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upon Plaintiff’s failure to pay the filing fee and prosecute this action. Further, the factors in favor

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of dismissal outweigh the policy favoring disposition of cases on their merits.

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In its July 6, 2012 order, the Court warned Plaintiff that if he failed to comply with the

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order, his entire matter would be dismissed. (Doc. 22 at 3). Thus, Plaintiff had adequate warning

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that dismissal would result from his noncompliance with the Court’s order, and this satisfies the

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requirement that the Court consider less drastic measures than dismissal of the action. Ferdik,
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963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser sanction is feasible given

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the Court’s inability to communicate with Plaintiff.

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Accordingly, IT IS HEREBY RECOMMENDED:

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This action be DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court be directed to close this action because this order terminates

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the action in its entirety.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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14 days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

August 1, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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