Miessek v. Unknown
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Obey Court Order and Failure to Prosecute 3 , signed by Magistrate Judge Barbara A. McAuliffe on 6/1/2018: 14-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TONNE L. MIESSEK,
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Plaintiff,
v.
Case No.: 1:18-cv-00300-LJO-BAM
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION FOR FAILURE TO OBEY
COURT ORDER AND FAILURE TO
PROSECUTE
UNKNOWN,
(Doc. No. 3)
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Defendant.
FOURTEEN -DAY DEADLINE
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Plaintiff Tonne L. Miessek, proceeding pro se, initiated this civil action on March 2, 2018,
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by filing both a complaint and a motion seeking leave to proceed in forma pauperis. (Doc. Nos. 1
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and 2.) The form application to proceed in forma pauperis was not complete. Therefore, on April
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16, 2018, the Court ordered Plaintiff to file a completed application within thirty (30) days from
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service of the order. (Doc. No. 3.) The Court advised Plaintiff that the failure to comply with the
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order would result in dismissal of this action without prejudice. (Id.) The deadline for Plaintiff to
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file a completed application to proceed in forma pauperis or to pay the filing fee has passed, and
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Plaintiff has not complied with the Court’s order. Accordingly, the Court will recommend
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dismissal of this action with prejudice.
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I.
Failure to Prosecute and Failure to Obey a Court Order
A. Legal Standards
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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
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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 court
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may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to
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obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52,
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53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d
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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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B. Discussion
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Here, Plaintiff’s completed application is overdue, and Plaintiff has been otherwise non-
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responsive to the Court’s order directing her to file an application to proceed in forma pauperis or
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pay the filing fee. The Court cannot effectively manage its docket if Plaintiff ceases litigating this
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case. Thus, the Court finds that both the first and 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 responsibility
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it is to move a case toward disposition on the merits but whose conduct impedes progress in that
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direction,” which is the case here. In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d
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1217, 1228 (9th Cir. 2006) (citation omitted).
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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 April 16, 2018 order expressly
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warned Plaintiff that the failure to file a completed application to proceed in forma pauperis or
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pay the filing fee would result in dismissal of this action without prejudice. (Doc. No. 3.) Thus,
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Plaintiff had adequate warning that dismissal could result from 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 has not responded to the Court, making
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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no
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effect given that Plaintiff has ceased litigating this case.
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II.
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For the reasons explained above, the Court HEREBY RECOMMENDS that this action be
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Conclusion and Recommendation
dismissed for failure to obey a court order and failure to prosecute.
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These Findings and Recommendation 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 Recommendation, 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 Recommendation.” 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
June 1, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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