Long v. California

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss Action Without Prejudice for Failure to Obey a Court Order, Failure to File Application to Proceed In Forma Pauperis, and Failure to Pay Filing Fee re 3 , 4 , signed by Magistrate Judge Michael J. Seng on 01/21/15. Fourteen-Day Objection Deadline. Referred to Judge O'Neill. (Gonzalez, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN M. LONG, 12 13 14 15 Plaintiff, v. CALIFORNIA, Defendant. 16 CASE NO. 1:14-cv-01756-LJO-MJS (PC) FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY A COURT ORDER, FAILURE TO FILE APPLICATION TO PROCEED IN FORMA PAUPERIS, AND FAILURE TO PAY FILING FEE (ECF Nos. 3 & 4) 17 FOURTEEN (14) DAY OBJECTION DEADLINE 18 19 20 21 Plaintiff is a civil detainee proceeding pro se in a civil rights action brought pursuant to 42 U.S.C. § 1983. 22 On November 17, 2014, the Court ordered Plaintiff to submit a completed and 23 signed application to proceed in forma pauperis, or in the alternative to pay the $400.00 24 filing fee for this action within thirty days. (ECF No. 3.) The deadline passed without 25 Plaintiff filing an application to proceed in forma pauperis, paying the $400 filing fee, or 26 seeking an extension of time to do so. On December 30, 2014, the Court ordered 27 Plaintiff to show cause, within fourteen days, why the action should not be dismissed for 28 failure to obey the Court’s order. (ECF No. 4.) Plaintiff did not respond to the order to 1 show cause. 2 Local Rule 110 provides that “failure of counsel or of a party to comply with these 3 Rules or with any order of the Court may be grounds for imposition by the Court of any 4 and all sanctions . . . within the inherent power of the Court.” District courts have the 5 inherent power to control their dockets and “in the exercise of that power, they may 6 impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v. 7 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 8 on a party’s failure to prosecute, failure to obey a court order, or failure to comply with 9 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 10 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 11 1992) (dismissal for failure to comply with an order requiring amendment of a complaint); 12 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 13 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 14 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 15 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 16 (dismissal for lack of prosecution and failure to comply with local rules). 17 In determining whether to dismiss an action for lack of prosecution, failure to obey 18 a court order, or failure to comply with local rules, the Court must consider several 19 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 20 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 21 favoring disposition of cases on their merits, and (5) the availability of less drastic 22 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 23 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 24 In the instant case, the public’s interest in expeditiously resolving this litigation 25 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 26 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 27 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 28 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – 2 1 public policy favoring disposition of cases on their merits – is greatly outweighed by the 2 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 3 sanctions, at this stage in the proceedings there is little available which would constitute 4 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 5 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 6 of little use. 7 Plaintiff has failed to comply with the Court’s order that he file an application to 8 proceed in forma pauperis or pay the applicable filing fee. Accordingly, it is HEREBY 9 RECOMMENDED THAT this action be DISMISSED without prejudice. 10 These findings and recommendation are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 12 fourteen (14) days after being served with these Findings and Recommendations, any 13 party may file written objections with the Court and serve a copy on all parties. Such a 14 document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Any reply to the objections shall be served and filed within fourteen 16 (14) days after service of the objections. The parties are advised that failure to file 17 objections within the specified time may result in the waiver of rights on appeal. 18 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (9th Cir. 2014) (citing Baxter v. 19 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 IT IS SO ORDERED. Dated: January 21, 2015 /s/ 23 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?