Thornton v. California Department of Corrections and Rehabilitation

Filing 18

ORDER to randomly assign a district judge to this action; case assigned to District Judge Anthony W. Ishii. FINDINGS and RECOMMENDATIONS to dismiss action, without prejudice, for failure to obey a court order and failure to prosecute re 17 . Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-Days signed by Magistrate Judge Barbara A. McAuliffe on 5/30/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,

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Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

Case No. 1:17-cv-01463-BAM (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITHOUT PREJUDICE,
FOR FAILURE TO OBEY A COURT ORDER
AND FAILURE TO PROSECUTE
(ECF No. 17)
FOURTEEN (14) DAY DEADLINE

Defendant.

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Plaintiff William Cecil Thornton (“Plaintiff”) is a former state prisoner proceeding pro se
in this civil rights action pursuant to 42 U.S.C. § 1983.
On April 16, 2018, the Court issued an order directing Plaintiff to submit a completed and

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signed application to proceed in forma pauperis for a non-prisoner, or in the alternative, to pay

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the $400.00 filing fee for this action. (ECF No. 17.) The deadline for Plaintiff’s application or

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payment has expired, and Plaintiff has failed to comply with the Court’s order or otherwise

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communicate with the Court regarding this action.

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District courts have the inherent power to control their dockets and “[i]n the exercise of

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that power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure
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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to

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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); see also In

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re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006)

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(standards governing dismissal for failure to comply with court orders). These factors guide a

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court in deciding what to do and are not conditions that must be met in order for a court to take

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action. In re PPA, 460 F.3d at 1226 (citation omitted).

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The Court finds that the public’s interest in expeditious resolution of litigation and the

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Court’s need to manage its docket weigh in favor of dismissal. This action has been pending

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since October 2017 and can proceed no further without Plaintiff’s cooperation and compliance

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with the Court’s orders. Moreover, the matter cannot simply remain idle on the Court’s docket,

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unprosecuted, awaiting Plaintiff’s compliance. Indeed, a civil action may not proceed absent the

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submission of either the filing fee or an application to proceed in forma pauperis. 28 U.S.C.

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§§ 1914, 1915. As for the risk of prejudice, the law presumes prejudice from unreasonable delay.

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In re PPA, 460 F.3d at 1227–28. Regarding the fourth factor, while public policy favors

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disposition on the merits and therefore weighs against dismissal, it is Plaintiff’s own conduct

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which is at issue here and which has stalled the case. Id. at 1228. Finally, there are no alternative

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sanctions which are satisfactory. A monetary sanction has little to no benefit in a case in which

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Plaintiff has ceased responding to the Court’s orders. Further, Plaintiff was warned that his

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failure to submit an application to proceed in forma pauperis or pay the filing fee would result in

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dismissal of this action. (ECF No. 17, p. 2.) A warning that the failure to obey a court order will
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result in dismissal can meet the consideration of alternatives requirement. In re PPA, 460 F.3d at

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1229.

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Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
district judge to this action.

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Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, without

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prejudice, for Plaintiff’s failure to pay the filing fee or file an application to proceed in forma

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pauperis, failure to obey Court orders, and failure to prosecute.

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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

May 30, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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