Trestrail v. Allenby, et al.
Filing
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FINDINGS and RECOMMENDATION to Dismiss Action without Prejudice for Failure to Submit Filing Fee or Application to Proceed In Forma Pauperis, Failure to Obey a Court Order and Failure to Prosecute re 9 , 12 , signed by Magistrate Judge Michael J. Seng on 04/13/15. Referred to Judge O'Neill. Fourteen-Day Objection Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ALEXANDER TRESTRAIL,
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Plaintiff,
v.
CLIFF ALLENBY, et al.,
Defendants.
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CASE NO. 1:14-cv-01930-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT PREJUDICE
FOR FAILURE TO SUBMIT FILING FEE
OR APPLICATION TO PROCEED IN
FORMA PAUPERIS, FAILURE TO OBEY
A COURT ORDER AND FAILURE TO
PROSECUTE
(ECF Nos. 9 & 12)
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FOURTEEN (14) DAY OBJECTION
DEADLINE
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Plaintiff is a civil detainee proceeding pro se in this civil rights action brought
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pursuant to 42 U.S.C. § 1983. On December 17, 2014, Plaintiff was ordered to submit an
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application to proceed in forma pauperis on the appropriate form or pay the applicable
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filing fee in full within thirty days. (ECF No. 7.) Plaintiff failed to comply and, on January
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23, 2015, Plaintiff was ordered to show cause why the action should not be dismissed.
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(ECF No. 9.) Plaintiff filed no response to the order to show cause.
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On March 3, 2015, Plaintiff’s complaint was screened and dismissed for failure to
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state a claim, and he was ordered to file a petition for a writ of habeas corpus or a notice
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of voluntary dismissal within thirty days. (ECF No. 12.) The thirty-day deadline passed
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without Plaintiff filing either a habeas petition or notice of voluntary dismissal, or seeking
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an extension of time to do so.
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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, 130-31 (9th Cir. 1987) (dismissal for failure to comply
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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (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.
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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 fees in this action and likely is unable to pay, making monetary sanctions
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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 submit the applicable filing fee or an
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application to proceed in forma pauperis, failure to obey a court order and failure to
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prosecute.
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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:
April 13, 2015
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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