Burnett v. Kammack et al

Filing 12

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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