Dukes v. United States

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Meloniece Dukes, 8 Plaintiff CV-25-1124-PHX-JFM -vs- 9 United States of America, Defendant. Report & Recommendation 10 11 This matter is before the undersigned magistrate judge awaiting consents pursuant 12 to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive of 13 claims or defenses, the undersigned proceeds by way of a Report & Recommendation to 14 Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 15 21-25. 16 Plaintiff commenced this civil rights action on April 4, 2025 by filing a pro se 17 Complaint (Doc. 1) and Application to Proceed In Forma Pauperis (Doc. 2). On May 9, 18 2025, the Court denied without prejudice Plaintiff’s Application to Proceed In Forma 19 Pauperis, with leave to file an amended application, on the basis that the application 20 suggested available assets, and was inconsistent with IFP Applications filed by Plaintiff in 21 other cases which suggested available assets or income.1 Plaintiff was given 14 days to 22 file an amended application with additional explanation. (Order 5/9/25, Doc. 10.) 23 Plaintiff then filed an Amended IFP Application (Doc. 11) which failed to address 24 the inconsistencies with prior applications and indicating unexplained changes from the 25 original IFP application. Consequently, the Amended IFP Application was denied without 26

27 1 Local Rule of Civil Procedure 72.2(a)(4) directs that absent consent to magistrate jurisdiction, a magistrate judge may not deny a request for in forma pauperis status made 1 prejudice, and Plaintiff was given 14 days to file an amended IFP application addressing 2 the issues, or to pay the filing fees. (Order 5/14/25, Doc. 12.) 3 That deadline expired on May 28, 2025. No amended, or renewed application to 4 proceed in forma pauperis has been filed. Nor has Plaintiff paid the filing fees, or 5 otherwise responded or taken action to prosecute this case. 6 Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust 7 Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Plaintiff's failure 8 to timely file an amended application constitutes a failure to prosecute. 9 Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff 10 fails to prosecute or to comply with these rules or a court order, a defendant may move to 11 dismiss the action." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the 12 Supreme Court recognized that a federal district court has the inherent power to dismiss a 13 case sua sponte for failure to prosecute, even though the language of Rule 41(b) of the 14 Federal Rules of Civil Procedure appears to require a motion from a party. Moreover, in 15 appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even 16 without notice or hearing. Id. at 633. 17 In determining whether Plaintiff's failure to prosecute warrants dismissal of the 18 case, the Court must weigh the following five factors: "(1) the public's interest in 19 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk 20 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 21 merits; and (5) the availability of less drastic sanctions." Carey, 856 F.2d at 1440 (quoting 22 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these 23 factors favor the imposition of sanctions in most cases, while the fourth factor cuts against 24 a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser 25 sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). 26 Here, the first (expeditious resolution), second (docket management), and third 27 (prejudice) factors favor dismissal of this case. Plaintiff's failure to pursue an IFP 1 The fourth factor (merits), as always, weighs against dismissal. The fifth factor 2 (alternatives) requires the court to consider whether a less drastic alternative is available. 3 Here, monetary sanctions are unlikely to be effective, assuming Plaintiff’s assertions of 4 impecunity are correct. Plaintiff’s complete failure to respond suggests simple 5 abandonment of the case, and that other administrative or evidentiary sanctions will be 6 ineffective. 7 The undersigned finds that only one less drastic sanction is realistically available. 8 Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication 9 upon the merits "[u]nless the court in its order for dismissal otherwise specifies." In the 10 instant case, the undersigned finds that a dismissal with prejudice would be unnecessarily 11 harsh. The Complaint and this action shou8ld therefore be dismissed without prejudice 12 pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 13 IT IS THEREFORE RECOMMENDED this action be DISMISSED 14 WITHOUT PREJUDICE.

15 EFFECT OF RECOMMENDATION 16 This recommendation is not an order that is immediately appealable to the Ninth 17 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 18 Appellate Procedure, should not be filed until entry of the district court's judgment. 19 However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall 20 have fourteen (14) days from the date of service of a copy of this recommendation within 21 which to file specific written objections with the Court. Thereafter, the parties have 22 fourteen (14) days within which to file a response to the objections. Failure to timely file 23 objections to any findings or recommendations of the Magistrate Judge will be considered 24 a waiver of a party's right to de novo consideration of the issues, see United States v. 25 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver 26 of a party's right to appellate review of the findings of fact in an order or judgment entered 27 1 1146-47 (9th Cir. 2007). 2 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 3 || “[uJnless otherwise permitted by the Court, an objection to a Report and Recommendation 4 || issued by a Magistrate Judge shall not exceed ten (10) pages.” _ A LZ zeae 6 Dated: June 2, 2025 James F. Metcalf 25-1124" RR 2506 02 re Dismiss re Feesdocs United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28