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

Filing 8

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, for Failure to Obey a Court Order and Failure to File an Application to Proceed In Forma Pauperis or Pay the Applicable Filing Fee re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 6/22/2015. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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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,

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Defendants.

FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT PREJUDICE
FOR FAILURE TO OBEY A COURT
ORDER AND FAILURE TO FILE
APPLICATION TO PROCEED IN FORMA
PAUPERIS OR PAY FILING FEE

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(ECF No. 7)

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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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 that the complaint failed to state a cognizable claim. (ECF No. 2.)

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Plaintiff was ordered to file a signed complaint within thirty days. Plaintiff simultaneously

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was ordered to file an application to proceed in forma pauperis or pay the $400 filing fee

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for this action. Plaintiff was warned that failure to comply would result in dismissal of the

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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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appeal by Plaintiff relating to the instant action. Presumably, Plaintiff’s appeal was not

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processed based on the Ninth Circuit’s May 13, 2014 order enjoining Plaintiff from filing

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further civil actions naming the same defendants and/or raising the same allegations as

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those in actions previously filed and dismissed in the district courts, and directing this

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court to reject any related notices of appeal. See In re: Young Yil Jo, No. 13-80149 (9th

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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. Accordingly, on May 15, 2015, the Court ordered Plaintiff to show

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cause why the action should not be dismissed. (ECF No. 7.) Plaintiff did not respond to

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the order to show cause.

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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 based

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on a party’s failure to prosecute, failure to obey a court order, or failure to comply with

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

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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

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

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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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)

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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 is likely

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unable to pay monetary sanctions, making such sanctions of little use.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be

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dismissed, without prejudice, for failure to obey a court order and failure to file an

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application to proceed in forma pauperis or pay the applicable filing fee.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 22, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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