Jo v. Six Unknown Agents or Mr President of the United States Barack Obama

Filing 7

ORDER to SHOW CAUSE Why Action Should Not be Dismissed for Failure to Comply With a Court Order and Failure to File Application to Proceed In Forma Pauperis OR Pay Filing Fee, signed by Magistrate Judge Michael J. Seng on 5/15/15. Show Cause Response Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YOUNG YIL JO,

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CASE NO. 1:14-cv-00320-AWI-MJS (PC)
Plaintiff,

v.
SIX UNKNOWN AGENTS or MR
PRESIDENT OF THE UNITED
STATES BARACK OBAMA,

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Defendant.

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(ECF No. 2)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO COMPLY WITH A COURT
ORDER AND FAILURE TO FILE
APPLICATION TO PROCEED IN FORMA
PAUPERIS OR PAY FILING FEE

Plaintiff is a federal detainee proceeding pro se in this purported civil rights action
brought pursuant to 42 U.S.C. § 1983.

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On March 13, 2014, the Court struck Plaintiff’s complaint because it was

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unsigned, and noted, also, that the complaint failed to state a cognizable claim. (ECF

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No. 2.) Plaintiff was ordered to file a signed complaint within thirty days. Plaintiff

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simultaneously was ordered to file an application to proceed in forma pauperis or pay the

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$400 filing fee for this action. Plaintiff was warned that failure to comply would result in

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dismissal of the action. (Id.)

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Plaintiff appealed. (ECF Nos. 3 & 5.) His appeals were not processed by the Ninth

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Circuit Court of Appeals, and a search of the Ninth Circuit’s docket does not reveal any

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pending appeal by Plaintiff relating to the instant action. Presumably, Plaintiff’s appeal

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was not processed because of the Ninth Circuit’s May 13, 2014 order enjoining Plaintiff

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from filing further civil actions naming the same defendants and/or raising the same

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allegations as those in actions previously filed and dismissed in the district courts, and

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directing this court to reject any related notices of appeal. See In re: Young Yil Jo, No.

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13-80149 (9th Cir. May 13, 2014).

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The action has been pending for over a year without any operative complaint and

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without Plaintiff submitting an application to proceed in forma pauperis or paying the

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applicable filing fee.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.” District courts have the

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inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate, default or dismissal.” Thompson v.

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Housing Auth., 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, failure to obey a court order, or failure

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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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

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

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(dismissal for lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the Court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need
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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

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favoring disposition of cases on their merits, and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third

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factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting

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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor --

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public policy favoring disposition of cases on their merits -- is greatly outweighed by the

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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

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paid the filing fee for this action and is likely unable to pay, making monetary sanctions

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of little use.

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Accordingly, it is HEREBY ORDERED THAT:

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1.

Within fourteen (14) days of service of this Order, Plaintiff shall file an

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amended complaint or show cause as to why this action should not be

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dismissed without prejudice for failure to comply with the Court’s order

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(ECF No. 2);

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2.

Within fourteen (14) days of service of this Order, Plaintiff also shall either

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file an application to proceed in forma pauperis, pay the $400 filing fee in

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full, or show cause as to why this action should not be dismissed without

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prejudice for failure to comply with the Court’s order (ECF No. 2); and

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3.

If Plaintiff fails to show cause, file an amended complaint, file an

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application to proceed in forma pauperis, or pay the $400 filing fee in full,

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the undersigned will recommend that the action be dismissed without

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prejudice for failure to obey a court order and failure to pay the applicable
filing fee.

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IT IS SO ORDERED.

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Dated:

May 15, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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