Nash v. Vilsack

• Court: District Court, D. Arizona
• Decided: October 21, 2024
• Docket: 3:24-cv-08132
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Benjamin Edward Nash, No. CV-24-8132-PCT-DMF

10 Plaintiff, REPORT AND RECOMMENDATION 11 v.

12 Tom Vilsack,

13 Defendant.

14 15 TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES 16 DISTRICT JUDGE: 17 On July 3, 2024, Plaintiff Benjamin Edward Nash (“Plaintiff”), a non-incarcerated 18 litigant, filed a pro se Complaint (Doc. 1).1 Plaintiff also filed an Application for Leave to 19 Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a request for 20 leave to proceed in this matter in forma pauperis. 21 This matter was assigned to undersigned United States Magistrate Judge 22 (“Magistrate Judge”) (Doc. 6), and Plaintiff later consented to proceed before a United 23 States Magistrate Judge pursuant to 28 U.S.C. § 636 (Doc. 13).2 On August 22, 2024, the 24 25 1 “Pro se” is a Latin term, meaning “on one's own behalf” and is commonly used to refer to persons self-representing in court. Black’s Law Dictionary (12th ed. 2024). The 26 right to appear pro se in a civil case in federal court is authorized by statute. See 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own 27 cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”). 28 2 Before appearances and consent of defendants, there is not full consent for a 1 Court considered and denied without prejudice Plaintiff’s Application to Proceed in 2 District Court Without Prepaying Fees or Costs (Doc. 19). The Court ordered Plaintiff to 3 pay the $405 filing fee in full within twenty-one days of the Court’s Order and warned of 4 dismissal if Plaintiff failed to timely pay the filing fee in full (Id.).3 On September 11, 5 2024, the Court extended the deadline to pay the $405 filing fee in full within twenty-one 6 days of the Court’s September 11, 2024, Order and again warned of dismissal if Plaintiff 7 failed to timely pay the filing fee in full (Doc. 20). 8 The deadline for Plaintiff’s payment in full of the $405 filing fee passed several 9 weeks ago (Id.). To date, the filing fee has not been paid. As set forth below, it is 10 recommended that this matter be dismissed without prejudice for Plaintiff’s failure to 11 timely pay the filing fee. 12 I. PERTINENT PROCEDURAL HISTORY AND POSTURE 13 On July 3, 2024, Plaintiff filed a pro se Complaint as a non-incarcerated litigant 14 (Doc. 1). On the same date as the filing of the Complaint, Plaintiff filed an Application for 15 Leave to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which is a 16 request for leave to proceed in this matter in forma pauperis. See 28 U.S.C. § 1915(a) 17 (“[A]ny court of the United States may authorize the commencement, prosecution or 18 defense of any suit, action or proceeding, civil or criminal, or appeal therein, without 19 prepayment of fees or security therefor, by a person who submits an affidavit that includes 20 a statement of all assets such prisoner possesses that the person is unable to pay such fees 21 or give security therefor.”).4 Plaintiff consented to proceed before a United States 22 Magistrate Judge (Doc. 13). 23

24 Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made 25 to Senior United States District Judge Stephen M. McNamee. 26 3 See United States District Court for the District of Arizona Fee Schedule, https://www.azd.uscourts.gov/sites/azd/files/Fee%20Schedule.pdf (last accessed on 27 October 15, 2024) [https://perma.cc/Q6UA-ZAQF]. 28 4 Plaintiff also requested appointment of counsel (Doc. 5), which the Court denied without prejudice (Doc. 17). 1 On August 22, 2024, the Court denied without prejudice Plaintiff’s Application to 2 Proceed in District Court Without Prepaying Fees or Costs (Doc. 19). The Court explained:

3 The district court may permit indigent litigants to proceed in forma pauperis 4 upon completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). An affidavit of indigence may be sufficient “where it alleges that the affiant 5 cannot pay the court costs and still afford the necessities of life.” Escobedo 6 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Title 28, Section 1915(a) does not define what constitutes insufficient assets, and a plaintiff need not 7 be “absolutely destitute to obtain benefits of the in forma pauperis statute.” 8 Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). However, a plaintiff seeking in forma pauperis status must allege poverty “with some 9 particularity, definiteness and certainty.” United States v. McQuade, 647 10 F.2d 938, 940 (9th Cir. 1981) (internal quotation marks omitted); see also Harris v. Arizona Bd. of Regents, No. CV-16-04029- PHX-DGC, 2016 WL 11 11528517, at *1 (D. Ariz. Dec. 21, 2016). 12 After careful review of Plaintiff’s Application, the Court finds that Plaintiff 13 does not qualify for in forma pauperis status at this time in this litigation. Given the information in the Application (Doc. 2), the Court finds that 14 Plaintiff is able to pay the filing fee and costs of these proceedings. Plaintiff 15 reports earning $65,000 last year, a current gross monthly income of $4,750.40, over $2000 funds in a checking account, $400 in cryptocurrency, 16 over $200 in a Robinhood investment account, monthly expenses of 17 $1,624.63, and ownership of a vehicle that Plaintiff values at $1,400 (Id. at 1-5). Plaintiff has no dependents (Id. at 3) and does not receive or appear to 18 need support from another person. Plaintiff reports that he does not expect a 19 change in financial circumstances in the next twelve months (Id. at 5). Further, Plaintiff declares that he has not spent any money for expenses or 20 attorney fees in relation to this action (Id.). Plaintiff reports unsecured debts 21 of approximately $100,000 and “no installment payments for” the “credit accounts per se” (Id.). Nevertheless, Plaintiff’s debts do not prevent Plaintiff 22 from paying the filing fee and associated litigation costs given his income, 23 assets (albeit modest assets), and expenses. Further, Plaintiff’s recent letter to the Court (Doc. 15), which the Court accepted with the election form (Doc. 24 13) to reopen the case (Doc. 14), does not reflect change in financial 25 circumstances (Doc. 15). (Id. at 1-2) 26 On August 22, 2024, the Court ordered Plaintiff to pay the $405 filing fee in full 27 within twenty-one days of the Court’s Order and warned of dismissal if Plaintiff failed to 28 1 timely pay the filing fee in full (Id. at 2-3). On September 11, 2024, the Court extended 2 the deadline to pay the filing fee in full within twenty-one days of the Court’s September 3 11, 2024, Order and again warned of dismissal if Plaintiff failed to timely pay the filing fee 4 in full (Doc. 20). The deadline for Plaintiff’s payment in full of the filing fee passed several 5 weeks ago (Id.). To date, the filing fee has not been paid. As set forth below, it is 6 recommended that this matter be dismissed without prejudice for Plaintiff’s failure to 7 timely pay the filing fee in full. 8 II. FAILURE TO PAY FILING FEE AND/OR COMPLY WITH COURT 9 ORDERS 10 A. Plaintiff’s Failure to Pay Filing Fee Requires Dismissal of this Action 11 Without Prejudice 12 Parties filing actions in the United States District Court are required to pay filing 13 fees. 28 U.S.C. § 1914. An action may proceed without the immediate payment of a filing 14 fee only upon granting of in forma pauperis status. See 28 U.S.C. § 1915. Local Rule of 15 Civil Procedure (“LRCiv”) 72.2(a)(4) grants magistrate judges authority to deny an in 16 forma pauperis application where “the person requesting such status has expressly 17 consented in writing to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).” See 18 also LRCiv 3.3 (requirements for in forma pauperis application). Here, Plaintiff consented 19 in writing to Magistrate Judge jurisdiction before the consideration and denial of Plaintiff’s 20 in forma pauperis application (Docs. 13, 19). Failure to pay the statutory filing fee will 21 result in dismissal of these actions without prejudice. See Olivares v. Marshall, 59 F.3d 22 109, 112 (9th Cir. 1995) (explaining that district court has authority to dismiss without 23 prejudice a complaint for failure to pay filing fee); In re Perroton, 958 F.2d 889, 896 (9th 24 Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay required filing 25 fees). 26 Plaintiff is not a prisoner within the meaning of 28 U.S.C. § 1915(h), and thus the 27 limitation on dismissals of prisoner suits under 28 U.S.C. § 1915(b)(4) does not apply. 28 Moreover, dismissal without prejudice is hereby recommended for failure to pay statutorily 1 required fees, where in forma pauperis status had already been denied. Accordingly, the 2 Court need not apply a multifactor analysis to exercise its inherent power to dismiss for 3 failure to prosecute or failure to comply with a court order (i.e., (1) interest in 4 expeditiousness; (2) need to manage docket; (3) prejudice: (4) public policy regarding 5 merits; and (5) availability of alternatives). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 6 61 (9th Cir. 1992); cf. Grindling v. Kaaukai, 851 F. App'x 763, 764 (9th Cir. 2021) 7 (applying five factor analysis to dismissal for either failure to apply for in forma pauperis 8 status or failure to pay the filing fee); Alvarez v. McMillian, No. CV-22-01248-PHX-DMF, 9 2022 WL 7713369, at *4 (D. Ariz. Sept. 21, 2022), report and recommendation adopted, 10 2022 WL 7545188 (D. Ariz. Oct. 13, 2022) (same); Halloum v. Ryan, No. CV 11-0097- 11 PHX-RCB (JFM), 2012 WL 12951307, at *2 (D. Ariz. Nov. 28, 2012) (applying five factor 12 analysis to failure to respond to order to pay or show cause). 13 B. Failure to Comply with Court Orders Warrants Dismissal Without 14 Prejudice of this Action 15 Additionally, in the absence of a motion to dismiss from a party, the United States 16 Supreme Court has recognized that a district court has the inherent power to dismiss an 17 action sua sponte for failure to comply with court orders or for lack of prosecution. Link 18 v. Wabash R.R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed. R. Civ. P. 41(b) (“If the plaintiff 19 fails to prosecute or comply with these rules or a court order, a defendant may move to 20 dismiss the action or any claim against it.”). This inherent power is “governed not by rule 21 or statute but by the control necessarily vested in courts to manage their own affairs so as 22 to achieve the orderly and expeditious disposition of cases.” Link, 370 U.S. at 630-31. 23 To determine whether a plaintiff’s failure to comply with a court’s orders warrants 24 dismissal, a court weighs five factors: “(1) the public’s interest in expeditious resolution of 25 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 26 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 27 availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 28 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without 1 first considering the impact of the sanction and the adequacy of less drastic sanctions.” 2 United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a 3 district court’s warning to a party that his failure to obey the court’s order will result in 4 dismissal can satisfy the consideration of alternatives requirement.” Ferdik, 963 F.2d at 5 1262 (internal citations omitted). 6 Here, the first and second factors weigh in favor of dismissal. Dismissal would 7 allow the Court to manage its docket and would satisfy the “public’s interest in expeditious 8 resolution” of Plaintiff’s claims. Henderson, 779 F.2d at 1423. If Plaintiff does not pay 9 the filing fee in compliance with Court orders, he will delay the resolution of his claims, 10 and the Court will be unable to manage its docket in accordance with applicable law. 11 As for the third factor, no Defendant has appeared in this action, nor has Plaintiff 12 served any Defendant with the Complaint (Doc. 1). Although the loss of “a quick victory” 13 is not prejudicial, Bateman v. United States Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 14 2000), Defendants should not be forced to defend a case wherein Plaintiff has not followed 15 the proper rules and procedures to initiate the action. The third factor weighs in favor of 16 dismissal. 17 The fourth factor does not support dismissal because dismissal of Plaintiff’s claims 18 at this early stage would not support “the public policy favoring disposition of cases on 19 their merits[.]” Henderson, 779 F.2d at 1423. 20 Finally, as to the fifth factor, alternative sanctions would likely be futile, which 21 weighs in favor of dismissal. In the Court’s August 22, 2024, and September 11, 2024, 22 Orders, Plaintiff was ordered to pay the standard $405 filing fee in full, but Plaintiff did 23 not do so (Docs. 19, 20). Indeed, Plaintiff has not made any filings in this matter since the 24 Court’s September 11, 2024, Order (Doc. 20). 25 Importantly, the Court has warned Plaintiff about the possibility of dismissal of 26 Plaintiff’s lawsuit if Plaintiff fails to timely comply with this Court’s Orders (Docs. 19, 27 20). Despite the Court’s warnings, Plaintiff has not paid the filing fee. 28 1 Under the circumstances before the Court, the Court is not convinced that a less 2 strict sanction than dismissal without prejudice would be effective. Plaintiff has failed to 3 pay the filing fee and has therefore failed to comply with two of this Court’s orders. Thus, 4 the Court may use its discretion to dismiss this lawsuit, and it is recommended that the 5 Court do so. See Link, 370 U.S. at 630-31; see also RaulFestone v. Halikowski, No. CV- 6 19-00923-PHX-DMF, 2019 WL 13214765, at *1 (D. Ariz. June 25, 2019) (accepting 7 Report and Recommendation for dismissal based on failure to comply with Court orders 8 and failure to pay filing fee); Halloum, 2012 WL 12951307, at *2 (dismissing for failure 9 to pay filing fee). 10 III. CONCLUSION 11 Because Plaintiff has not paid the filing fee as required by statute and has not paid 12 the filing fee as ordered by the Court, it is recommended that this matter be dismissed 13 without prejudice. 14 Accordingly, 15 IT IS RECOMMENDED that this matter be dismissed without prejudice and the 16 Clerk of Court be directed to terminate this matter. 17 This recommendation is not an order that is immediately appealable to the Ninth 18 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 19 Rules of Appellate Procedure should not be filed until entry of the District Court’s 20 judgment. The parties shall have fourteen days from the date of service of a copy of this 21 recommendation within which to file specific written objections with the Court. See 28 22 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which 23 to file responses to any objections. Failure to file timely objections to the Magistrate 24 Judge’s Report and Recommendation may result in the acceptance of the Report and 25 Recommendation by the District Court without further review. See United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual 27 determination of the Magistrate Judge may be considered a waiver of a party’s right to 28 || appellate review of the findings of fact in an order or judgment entered pursuant to the || Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 3 In addition, LRCiv 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall || not exceed ten (10) pages.” 6 Dated this 21st day of October, 2024. 7 8 f 9 Later UW ing 10 Honorable Deborah M. Fine United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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