Burnett v. Kammack et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action for Failure to Obey a Court Order and Failure to Prosecute; Fourteen (14) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 11/27/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/14/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CARLOS ROMERO BURNETT,
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Plaintiff,
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v.
Case No. 1:17-cv-01135-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO OBEY A COURT ORDER
AND FAILURE TO PROSECUTE
KAMMACK, et al,
(ECF No. 6)
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Defendants.
FOURTEEN (14) DAY DEADLINE
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I.
Background
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Plaintiff Carlos Romero Burnett (“Plaintiff”) is a state prisoner proceeding pro se in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 23, 2017,
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together with a motion requesting leave to proceed in forma pauperis pursuant to 28 U.S.C.
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§ 1915. (ECF Nos. 1, 2.)
On August 29, 2017, the Court issued an order denying Plaintiff’s application to proceed
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in forma pauperis because it was incomplete. There was no certified copy of Plaintiff’s trust
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account statement for the past six months attached to the application as the instructions require,
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nor was the certificate portion of the form dated, signed, or filled-out by an authorized officer of
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the correctional institution. The Court ordered Plaintiff to submit a new application within forty-
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five days. (ECF No. 3.)
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On September 21, 2017, Plaintiff submitted a renewed motion to proceed in forma
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pauperis. (ECF No. 5.) While the certificate portion of the form was completed, Plaintiff had not
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attached a certified copy of his trust account statement for the past six months. The Court denied
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the renewed motion on September 22, 2017 and directed Plaintiff to submit a new application or
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pay the filing fee within forty-five (45) days. (ECF No. 6.)
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On September 28 and October 25, 2017, Plaintiff filed notices of change of address. (ECF
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No. 9, 10.) Pursuant to those notices, the Court directed the Clerk of the Court to re-serve the
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September 22, 2017 order on Plaintiff at his current address of record. (ECF No. 11.)
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The deadline for Plaintiff to file his application to proceed in forma pauperis has expired,
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and Plaintiff has not filed a completed application, paid the filing fee, or otherwise responded to
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the Court’s order.
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II.
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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
Discussion
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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
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within the inherent power of the Court.” District courts have the inherent power to control their
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dockets and “[i]n the exercise of that power they may impose sanctions including, where
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appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
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963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
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(dismissal for failure to comply with court order).
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In determining whether to dismiss an action, the Court must consider several factors:
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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
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Here, Plaintiff’s application to proceed in forma pauperis is overdue. Despite multiple
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attempts to communicate with Plaintiff, he has failed to comply with the Court’s order. The
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Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Indeed, a civil
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action may not proceed absent the submission of either the filing fee or a completed application to
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proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Thus, the Court finds that both the first and
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second factors weigh in favor of dismissal.
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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d
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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products
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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
Finally, the court’s warning to a party that failure to obey the court’s order will result in
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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s September 22, 2017 order
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directing Plaintiff to submit a completed application to proceed in forma pauperis or pay the filing
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fee expressly warned Plaintiff that his failure to comply with the Court’s order would result in
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dismissal of this action, without prejudice. (ECF No. 6 at 2.) Thus, Plaintiff had adequate
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warning that dismissal could result from his noncompliance.
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Additionally, at this stage in the proceedings there is little available to the Court that
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would constitute a satisfactory lesser sanction while protecting the Court from further
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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this
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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is
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likely to have no effect given that Plaintiff has ceased litigating his case.
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III.
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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without
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prejudice, for Plaintiff’s failure to obey the Court’s order and failure to prosecute this action.
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Conclusion and Order
These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of the “right to challenge the magistrate’s factual
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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (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:
/s/ Barbara
November 27, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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