(PC) Bender v. Santoro et al
Filing
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FINDINGS and RECOMMENDATION Recommending Dismissal of Action for Failure to Comply with a Court Order and Failure to Prosecute signed by Magistrate Judge Stanley A. Boone on 06/07/2021. Referred to Judge Unassigned; Objections to F&R due within Fourteen-Days. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FLOYD EUGENE BENDER,
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Plaintiff,
v.
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KELLY SANTORO, et al.,
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Defendants.
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Case No.: 1:21-cv-00448-NONE-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO COMPLY WITH A COURT
ORDER AND FAILURE TO PROSECUTE
(ECF No. 12.)
Plaintiff Floyd Eugene Bender is proceeding pro se in this civil rights action pursuant to 42
U.S.C. § 1983.
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Plaintiff filed the instant action on March 11, 2021.
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On March 19, 2021, the Court directed Plaintiff to pay the $402.00 filing fee or complete and
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submit an application to proceed in forma pauperis within forty-five days. (ECF No. 5.) Plaintiff
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failed to comply with the Court’s March 19, 2021. Therefore, on May 12, 2021, the Court ordered
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Plaintiff to show cause why the action should not be dismissed. (ECF No. 12.) Plaintiff has failed to
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respond to the Court’s order to show cause and the time to do so has now passed. Accordingly,
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dismissal of the action is warranted.
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Local Rule 110 provides that “[f]ailure ... of a party to comply with these Rules or with any
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order of the Court may be grounds for imposition by the Court of any and all sanctions ... within the
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inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n
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the exercise of that power they may impose sanctions including, where appropriate, ... dismissal.”
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Thompson v. Hous. 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 to
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comply 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 order).
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In determining whether to dismiss an action, the Court must consider several factors: (1) the public's
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interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of
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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5)
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the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986);
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Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
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Here, the filing fee or an application to proceed in forma pauperis are overdue, and Plaintiff
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has failed to comply with the Court's orders. The Court cannot effectively manage its docket if
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Plaintiffs cease litigating their case. Thus, the Court finds that both the first and second factors weigh
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in favor of dismissal. The third factor, risk of prejudice to defendant, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in
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prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor
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usually weighs against dismissal because public policy favors disposition on the merits. Pagtalunan v.
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Galaza, 291 F.3d 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).
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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 March 19, 2021 order, specifically
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stated that the failure to pay the filing fee or complete an application to proceed in forma pauperis
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would result in dismissal of the action. (ECF No. 5.) The Court also ordered Plaintiff to show cause
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why the action should not be dismissed. (ECF No. 12.) Thus, Plaintiffs had adequate warning that
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dismissal could result from their noncompliance. Additionally, at this stage in the proceedings there is
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little available to the Court that would constitute a satisfactory lesser sanction while protecting the
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Court from further unnecessary expenditure of its scarce resources.
Accordingly, it is HEREBY RECOMMENDED that the instant action be dismissed, without
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prejudice, for failure to comply with a court order and failure to prosecute.
This 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 28 U.S.C. § 636(b)(l). Within fourteen (14) days
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after being served with this Findings and Recommendation, 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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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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June 7, 2021
UNITED STATES MAGISTRATE JUDGE
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