3 Jeromy Arroyo, 2:24-cv-01510-GMN-MDC 4 Plaintiff(s), REPORT AND RECOMMENDATION TO 5 vs. DISMISS CASE 6 Peter Bih, et al., 7 Defendant(s). 8 Pending before the Court is pro se plaintiff Jeromy Arroyo’s second Motion/Application to 9 Proceed In Forma Pauperis (“11/19/24 IFP”) (ECF No. 7) filed on November 19, 2024. For the 10 reasons stated below, the Court RECOMMENDS denying the IFP application and RECOMMENDS the 11 case be dismissed. 14 On August 15, 2024, plaintiff filed a complaint and his initial Motion/Application to Proceed In 15 Forma Pauperis and complaint. See ECF No. 1. “In forma pauperis” is a Latin legal term meaning "in 16 the character or manner of a pauper." “Pauper” means someone who is unable to provide for his own 17 support and is otherwise without financial resources. See Barron’s Law Dictionary 364 (Steven H. 18 Gifis, 4th ed. 1996). 19 On August 16, 2024, the Court issued an order (ECF No. 3) (“08/16/24 Order”) denying 20 plaintiff’s initial application and advising plaintiff that he did not sign his complaint. The Court’s 21 08/16/24 Order advised the plaintiff of the law guiding the Court in reviewing his in forma pauperis 22 application and used the language of such law in its reasoning, e.g, 28 U.S.C. § 1915(a)(1); Adkins v. E.I 23 DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (holding that a person must show that because of 24 his poverty, he cannot pay the court fees). 25 1 The Court, however, did not shut the door on the plaintiffs case or his request to proceed in 2 || forma pauperis. Instead, the Court’s 08/16/24 Order informed plaintiff of the Court’s reasons for 3 || denying his application and gave plaintiff an opportunity to submit an amended application with 4 || additional information along with a signed complaint. The Court gave plaintiff until September 16, 5 || 2024, to submit a new Motion/Application to Proceed In Forma Pauperis with additional information 6 || and a signed complaint. See ECF No. 3. 7 Plaintiff, however, did not take such opportunity. Instead, plaintiff has become upset over the 8 || denial of his initial August 15, 2024, Motion/Application to Proceed In Forma Pauperis and has left 9 || several threatening voice mails with the Court and Court personnel over the past several weeks. 10 || Plaintiff's pending, and untimely, 11/19/24 IFP further reflects plaintiff's continued hostility, e.g., 11 4. How much cash do you and your spouse have? $ 0.00 Below, state any money you or your spouse have in bank accounts or in any other financial institution. 12 Financial institution Type of account Amount you have Amount your spouse has ame
15 If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, 16 perhaps because you have been in multiple institutions, attach one certified statement of each account. 17 a List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.
19 : 20 21
24 Model: ILLNESS
1 3 A person’s in forma pauperis affidavit must state the facts regarding the individual's poverty 4 “with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th 5 Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district 6 courts have the discretion to make a factual inquiry into a plaintiff's financial status and to deny a 7 request to proceed in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) 8 (finding that the district court did not abuse its discretion by denying the plaintiff's request to proceed 9 IFP because he “failed to verify his poverty adequately”). “Such affidavit must include a complete 10 statement of the plaintiff's personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 11 AJB (BLM), 2016 U.S. Dist. LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). 12 Plaintiff did not cure any of the deficiencies that the Court have him an opportunity to cure in its 13 08/16/24 Order. As discussed above, plaintiff’s current 11/19/24 IFP does not provide any legitimate 14 financial information that would allow the Court to evaluate his application under the legal standards the 15 Court is obligated to follow. Moreover, plaintiff failed to submit a signed complaint by the September 16 16, 2024, deadline. 18 District courts have the inherent power to control their dockets and “[i]n the exercise of that 19 power, they may impose sanctions including, where appropriate . . . dismissal” of a case. Thompson v. 20 Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action 21 based on a party’s failure to obey a court order or comply with local rules. Malone v. U.S. Postal 22 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 23 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply 24 with local rules). 25 1 In determining whether to dismiss an action on one of these grounds, the Court must consider: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 3 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 4 merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 5 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 6 1987)). 7 The first two factors, the public’s interest in expeditiously resolving this litigation and the 8 Court’s interest in managing its docket, weigh in favor of dismissing plaintiff’s action. Plaintiff did not 9 comply with this Court’s 08/16/24 Order. The third factor, risk of prejudice to defendants, also weighs 10 in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay 11 in prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 12 factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by the 13 factors favoring dismissal. 14 The fifth factor requires the Court to consider whether less drastic alternatives can be used to 15 correct the party’s failure that brought about the Court’s need to consider dismissal. Yourish v. Cal. 16 Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 17 the party has disobeyed a Court Order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 18 F.3d 639, 643 & n.4 (9th Cir.
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3 Jeromy Arroyo, 2:24-cv-01510-GMN-MDC 4 Plaintiff(s), REPORT AND RECOMMENDATION TO 5 vs. DISMISS CASE 6 Peter Bih, et al., 7 Defendant(s). 8 Pending before the Court is pro se plaintiff Jeromy Arroyo’s second Motion/Application to 9 Proceed In Forma Pauperis (“11/19/24 IFP”) (ECF No. 7) filed on November 19, 2024. For the 10 reasons stated below, the Court RECOMMENDS denying the IFP application and RECOMMENDS the 11 case be dismissed. 14 On August 15, 2024, plaintiff filed a complaint and his initial Motion/Application to Proceed In 15 Forma Pauperis and complaint. See ECF No. 1. “In forma pauperis” is a Latin legal term meaning "in 16 the character or manner of a pauper." “Pauper” means someone who is unable to provide for his own 17 support and is otherwise without financial resources. See Barron’s Law Dictionary 364 (Steven H. 18 Gifis, 4th ed. 1996). 19 On August 16, 2024, the Court issued an order (ECF No. 3) (“08/16/24 Order”) denying 20 plaintiff’s initial application and advising plaintiff that he did not sign his complaint. The Court’s 21 08/16/24 Order advised the plaintiff of the law guiding the Court in reviewing his in forma pauperis 22 application and used the language of such law in its reasoning, e.g, 28 U.S.C. § 1915(a)(1); Adkins v. E.I 23 DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (holding that a person must show that because of 24 his poverty, he cannot pay the court fees). 25 1 The Court, however, did not shut the door on the plaintiffs case or his request to proceed in 2 || forma pauperis. Instead, the Court’s 08/16/24 Order informed plaintiff of the Court’s reasons for 3 || denying his application and gave plaintiff an opportunity to submit an amended application with 4 || additional information along with a signed complaint. The Court gave plaintiff until September 16, 5 || 2024, to submit a new Motion/Application to Proceed In Forma Pauperis with additional information 6 || and a signed complaint. See ECF No. 3. 7 Plaintiff, however, did not take such opportunity. Instead, plaintiff has become upset over the 8 || denial of his initial August 15, 2024, Motion/Application to Proceed In Forma Pauperis and has left 9 || several threatening voice mails with the Court and Court personnel over the past several weeks. 10 || Plaintiff's pending, and untimely, 11/19/24 IFP further reflects plaintiff's continued hostility, e.g., 11 4. How much cash do you and your spouse have? $ 0.00 Below, state any money you or your spouse have in bank accounts or in any other financial institution. 12 Financial institution Type of account Amount you have Amount your spouse has ame
15 If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, 16 perhaps because you have been in multiple institutions, attach one certified statement of each account. 17 a List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.
19 : 20 21
24 Model: ILLNESS
1 3 A person’s in forma pauperis affidavit must state the facts regarding the individual's poverty 4 “with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th 5 Cir. 1981) (citation omitted). If an individual is unable or unwilling to verify his or her poverty, district 6 courts have the discretion to make a factual inquiry into a plaintiff's financial status and to deny a 7 request to proceed in forma pauperis. See, e.g., Marin v. Hahn, 271 Fed.Appx. 578 (9th Cir. 2008) 8 (finding that the district court did not abuse its discretion by denying the plaintiff's request to proceed 9 IFP because he “failed to verify his poverty adequately”). “Such affidavit must include a complete 10 statement of the plaintiff's personal assets.” Harper v. San Diego City Admin. Bldg., No. 16cv00768 11 AJB (BLM), 2016 U.S. Dist. LEXIS 192145, at 1 (S.D. Cal. June 9, 2016). 12 Plaintiff did not cure any of the deficiencies that the Court have him an opportunity to cure in its 13 08/16/24 Order. As discussed above, plaintiff’s current 11/19/24 IFP does not provide any legitimate 14 financial information that would allow the Court to evaluate his application under the legal standards the 15 Court is obligated to follow. Moreover, plaintiff failed to submit a signed complaint by the September 16 16, 2024, deadline. 18 District courts have the inherent power to control their dockets and “[i]n the exercise of that 19 power, they may impose sanctions including, where appropriate . . . dismissal” of a case. Thompson v. 20 Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action 21 based on a party’s failure to obey a court order or comply with local rules. Malone v. U.S. Postal 22 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 23 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply 24 with local rules). 25 1 In determining whether to dismiss an action on one of these grounds, the Court must consider: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 3 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 4 merits; and (5) the availability of less drastic alternatives. In re Phenylpropanolamine Prod. Liab. Litig., 5 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 6 1987)). 7 The first two factors, the public’s interest in expeditiously resolving this litigation and the 8 Court’s interest in managing its docket, weigh in favor of dismissing plaintiff’s action. Plaintiff did not 9 comply with this Court’s 08/16/24 Order. The third factor, risk of prejudice to defendants, also weighs 10 in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay 11 in prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 12 factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by the 13 factors favoring dismissal. 14 The fifth factor requires the Court to consider whether less drastic alternatives can be used to 15 correct the party’s failure that brought about the Court’s need to consider dismissal. Yourish v. Cal. 16 Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining that considering less drastic alternatives before 17 the party has disobeyed a Court Order does not satisfy this factor); accord Pagtalunan v. Galaza, 291 18 F.3d 639, 643 & n.4 (9th Cir. 2002) (explaining that “the persuasive force of” earlier Ninth Circuit cases 19 that “implicitly accepted pursuit of less drastic alternatives prior to disobedience of the Court’s Order as 20 satisfying this element[,]” i.e., like the “initial granting of leave to amend coupled with the warning of 21 dismissal for failure to comply[,]” have been “eroded” by Yourish). Courts “need not exhaust every 22 sanction short of dismissal before finally dismissing a case but must explore possible and meaningful 23 alternatives.” Henderson, 779 F.2d at 1424. 24 This Court cannot operate without collecting reasonable fees and litigation cannot progress 25 without a plaintiff’s compliance with Court orders. The only alternative is to enter another order setting 1 || another deadline. Issuing another order, however, will only delay the inevitable and further squander the 2 || Court’s finite resources. Setting another deadline is not a meaningful alternative given the circumstances 3 ||1n this case. Therefore, the fifth factor favors dismissal. 4 After weighing these dismissal factors, the Court finds that they weigh in favor of dismissal. For 5 || the reasons discussed in this Order and the Court’s 08/16/24 Order (ECF No. 3), plaintiff's case should 6 || be dismissed. 7 ACCORDINGLY, 8 9 IT IS RECOMMENDED that: 10 1. Plaintiff’s 11/19/24 IFP application (ECF No. 7) be DENIED. 2. The Complaint (ECF No. 1) and this action be DISMISSED. 12 DATED this 26" day of November 2024. IT IS SO RECOMMENDED. BA _ 14 A ff 15 fi /; \ 16 Hon péximiliang/. Co villter III Unitéd States Mavistrate Judge 17 1 19 . Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 20 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 21 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 22 may determine that an appeal has been waived due to the failure to file objections within the specified 23 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 24 This circuit has also held that (1) failure to file objections within the specified time and (2) 25 oo. . . . □□ failure to properly address and brief the objectionable issues waives the right to appeal the District
1 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 2 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 3 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 4 change of address. The notification must include proof of service upon each opposing party’s attorney, 5 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 6 result in dismissal of the action.
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