Mitchell v. Veterans Administration of United States

Filing 9

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action without Prejudice for Failure to Obey Court Order, Failure to Pay Filing Fee and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 10/4/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HURSEL FLOYD MITCHELL,
Plaintiff,

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v.
VETERANS ADMINISTRATION OF
UNITED STATES,

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Defendant.

Case No. 1:19-cv-00097-AWI-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
WITHOUT PREJUDICE FOR FAILURE TO
OBEY COURT ORDER, FAILURE TO PAY
FILING FEE AND FAILURE TO PROSECUTE
(Doc. 8)

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Plaintiff Hursel Floyd Mitchell (“Plaintiff”), proceeding pro se, initiated this civil action

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on January 23, 2019. (Doc. 1.) Plaintiff also filed an application to proceed in forma pauperis

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under 28 U.S.C. § 1915. (Doc. 2). However, Plaintiff’s application was incomplete, and failed to

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identify the amount of monies received from various sources, the amount of cash or monies in his

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checking or savings accounts and the value of other property. The Court therefore directed

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Plaintiff to submit a completed application for consideration or pay the filing fee. (Doc. 3.)

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On April 11, 2019, Plaintiff submitted a second application to proceed in forma pauperis.

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As with his original application, Plaintiff’s second application also was incomplete. Plaintiff

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reported only that he received Social Security income, but he did not identify the amount. He also

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indicated that he no longer had cash, checking or savings or income from any other sources. (Doc.

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4.) Due to the insufficiency of this second application, the Court directed Plaintiff to complete

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and file an Application to Proceed in District Court Without Prepaying Fees or Costs (Long

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Form) – AO 239. Alternatively, the Court indicated that Plaintiff could pay the filing fee in full.

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(Doc. 5.)

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On April 30, 2019, Plaintiff filed the Long Form application to proceed in forma pauperis.

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(Doc. 6.) According to the application, Plaintiff expected to receive $925.00 in May 2019 as

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income from real property and interest and dividends. (Id. at 1.) He also identified at least two

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accounts at financial institutions, but he did not identify the amount in those accounts. (Id. at 2.)

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He further identified certain persons or entities owing him monies, with an amount owed to him

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of $2,944.489.70. (Id. at 3.) Plaintiff also anticipated that his income would increase during the

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next 12 months. (Id. at 4.) As a final matter, Plaintiff asserted that he “will pay the fee” for these

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proceedings, but he does not “have a reliable or honest source.” (Id.)

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Following consideration of the Long Form application, on July 11, 2019, the Court issued

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findings and recommendations recommending that Plaintiff’s applications to proceed in forma

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pauperis be denied and that he be required to pay the $400.00 filing fee in full to proceed with

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this action. (Doc. 7.) Plaintiff did not file any objections, and on August 21, 2019, the assigned

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District Judge issued an order adopting the findings and recommendations and ordering Plaintiff

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to pay the $400.00 filing fee in full within thirty (30) days. (Doc. 8.) In that order, Plaintiff was

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warned that his failure to comply with the order would result in dismissal of this action for failure

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to prosecute. (Id. at 2.) More than thirty days have passed, and Plaintiff has not yet paid the filing

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fee or otherwise responded to the Court’s order.

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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 prejudice,

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based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply

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with 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. 1992)

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(dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S.
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Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to comply with court

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order).

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In determining whether to dismiss an action, the Court must consider several factors: (1)

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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) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

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2006) (standards governing dismissal for failure to comply with court orders). These factors

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

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take action. Id. (citation omitted).

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A civil action may not proceed absent the submission of either the filing fee or an

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application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiff’s applications to

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proceed in forma pauperis have been denied, he has failed to pay the filing fee, and he has not

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otherwise responded to the Court’s order, the Court is left with no alternative but to dismiss this

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action. This action has been pending since January 23, 2019, and can proceed no further without

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Plaintiff’s cooperation and compliance with the Court’s order. Moreover, the matter cannot

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simply remain idle on the Court’s docket, unprosecuted, awaiting Plaintiff’s compliance.

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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED,

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without prejudice, for Plaintiff’s failure to comply with the Court’s order of August 21, 2019,

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(Doc. 8), failure to pay the filing fee and failure to prosecute this action.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these findings and recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that the failure to file objections within the specified

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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. 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:

/s/ Barbara

October 4, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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