Jenkins v. California Department of Corrections and Rehabilitations

Filing 5

FINDINGS AND RECOMMENDATION To Dismiss Action Without Prejudice For Failure To Obey A Court Order, Failure To Prosecute, Failure To File Application To Proceed In Forma Pauperis, And Failure To Pay Filing Fee (ECF Nos. 1 & 4 ), Fourteen (14) Day objection Deadline, signed by Magistrate Judge Michael J. Seng on 2/3/2015. (Objections to F&R due by 2/20/2015) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARVIN JENKINS,

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Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

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Defendant.

CASE NO. 1:14-cv-01795-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT PREJUDICE
FOR FAILURE TO OBEY A COURT
ORDER, FAILURE TO PROSECUTE,
FAILURE TO FILE APPLICATION TO
PROCEED IN FORMA PAUPERIS, AND
FAILURE TO PAY FILING FEE
(ECF Nos. 1 & 4)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se in a civil rights action brought

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pursuant to 42 U.S.C. § 1983. He initially was a plaintiff in Webb v. California

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Department of Corrections and Rehabilitation, No. 1:14-cv-01528-MJS (PC). On

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November 17, 2014, the Court severed Plaintiff’s claims and ordered the Clerk’s Office

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to open the instant action for those claims. Plaintiff was ordered to submit his own

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complaint within thirty days, and an application to proceed in forma pauperis or the

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applicable filing fee within forty-five days. (ECF No. 1.) These deadlines passed without

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Plaintiff filing his pleading or an application to proceed in forma pauperis, paying the

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applicable filing fee, or seeking an extension of time to do so.

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On January 13, 2015, the Court ordered Plaintiff to show cause, within fourteen

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days, why the action should not be dismissed for failure to obey a court order and failure

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to prosecute. (ECF No. 4.) Plaintiff did not respond to the order to show cause, and the

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time for doing so has passed.

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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 . . . 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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Plaintiff has failed to comply with the Court’s order that he file his own pleading,

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and file an application to proceed in forma pauperis or pay the applicable filing fee. (ECF

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No. 1.) Accordingly, it is HEREBY RECOMMENDED THAT this action be DISMISSED

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without prejudice.

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These findings and recommendation 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) (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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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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