Philpott v. King et al

Filing 11

ORDER To SHOW CAUSE Why Action Should Not Be Dismissed For Failure To Obey A Court Order, Failure To File Application To Proceed In Forma Pauperis, And Failure To Pay Filing Fee (ECF No. 7 ), Fourteen (14) Day Deadline, signed by Magistrate Judge Michael J. Seng on 2/3/2015. Show Cause Response due by 2/19/2015.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN PHILPOTT,

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Plaintiff,
v.
AUDREY KING, et al.,
Defendants.

CASE NO. 1:14-cv-1766-LJO-MJS (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO OBEY A COURT ORDER,
FAILURE TO FILE APPLICATION TO
PROCEED IN FORMA PAUPERIS, AND
FAILURE TO PAY FILING FEE

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(ECF No. 7)

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FOURTEEN (14) DAY DEADLINE

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. On November 20, 2014, the Court
ordered Plaintiff to submit an application to proceed in forma pauperis on the appropriate
form, or to submit the $400 filing fee within thirty days. (ECF No. 7.) The thirty day
deadline passed without Plaintiff either filing an application to proceed in forma pauperis,
paying the $400 filing fee, or seeking an extension of time to do so.
Local Rule 110 provides that “failure of counsel or of a party to comply with these
Rules or with any order of the Court may be grounds for imposition by the Court of any
and all sanctions . . . within the inherent power of the Court.” District courts have the
inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case.” 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 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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Within fourteen (14) days of service of this Order, Plaintiff shall either file

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an application to proceed in forma pauperis on the appropriate form, pay

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the $400 filing fee in full, 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. 7);

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2.

If Plaintiff fails to show cause, file an application to proceed in forma

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pauperis, or pay the $400 filing fee in full, the undersigned will recommend

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that the action be dismissed without prejudice for failure to obey a court

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order; and

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3.

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The Clerk’s Office shall send to Plaintiff the attached form for application to
proceed in forma pauperis for a non-prisoner.

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IT IS SO ORDERED.
Dated:

February 3, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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