1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTIAN DAVID ENTO, Case No. 1:23-cv-00391-HBK (PC)
12 Plaintiff, ORDER DIRECTING CLERK TO ASSIGN ACTION TO DISTRICT JUDGE 13 v. 14 STATE OF ARKANSAS, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR A FAILURE TO 15 Defendants. OBEY COURT ORDER AND PROSECUTE
16 14-DAY DEADLINE
17 Plaintiff Christian David Ento is a state prisoner proceeding pro se in this civil rights 18 action. For the reasons set forth below, the undersigned recommends the District Court dismiss 19 this action for Plaintiff’s failure to comply with a court order and prosecute this action. 20 BACKGROUND 21 On March 20, 2023, the Court issued an order denying, without prejudice, Plaintiff’s 22 motion to proceed in forma pauperis (“IFP”) because it failed to comply with 28 U.S.C. § 23 1915(a)(1)(2). (Doc. No. 4). Specifically, Plaintiff did not submit a six-month statement and the 24 “Certificate” portion of his IFP application was blank. (Id.). Plaintiff was given twenty-one (21) 25 days to file a completed IFP application or pay the filing fee. (Id. at 2). As of the date of this 26 order, forty-two (42) days have passed, and Plaintiff has not filed a completed IFP application nor 27 paid the filing fee and the time to do so has expired. See docket. 1 APPLICABLE LAW AND ANALYSIS 2 A. Legal Standard 3 An action in federal court may only proceed with concurrent payment of the filing fee if 4 the court grants the party leave to proceed in forma pauperis (“IFP”) . 28 U.S.C. § 1915(a); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “[A] plaintiff seeking IFP status must 6 allege poverty with some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 7 F.3d 1226, 1234 (9th Cir. 2015). As part of the Prison Reform Litigation Act, in addition to filing 8 an affidavit of indigency, a prisoner “shall submit a certified copy of the trust fund account 9 statement (or institutional equivalent) for the prisoner for the six-month period immediately 10 proceeding the filing of the complaint . . . obtained from the appropriate official of each prison at 11 which the prisoner is or was confined.” § 1915(a)(1)(2). Where a prisoner litigant provides a 12 deficient IFP application, a court cannot meaningfully assess whether the prisoner is entitled to 13 proceed in forma pauperis or whether they must pay a portion of the filing fee. Where, as here, a 14 pro se litigant fails to qualify for in forma pauperis status or pay the filing fee the court is not 15 required to take any further action on the action. Ruggles v. Ige, No. 20-CV-00247-DKW-KJM, 16 2020 WL 8838243, at *2 (D. Haw. June 17, 2020). Indeed, a district court “will be free to 17 dismiss the complaint” if the filing fee is not paid or application or proceed in forma pauperis is 18 not granted. Escobedo v. Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015). 19 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 20 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 21 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 22 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 23 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 24 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 25 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 26 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 27 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 1 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 2 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 3 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 4 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 5 to comply with local rules). 6 In determining whether to dismiss an action, the Court must consider several factors: 7 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 9 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 10 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 11 B. Analysis 12 The undersigned considers each of the above-stated factors and concludes dismissal is 13 warranted in this case. The Court’s March 20, 2023 Order determined Plaintiff’s IFP application 14 was deficient and instructed Plaintiff to file a new IFP application within twenty-one days of 15 receipt of the Order. (Doc. No. 4). Alternatively, Plaintiff was advised he could pay the filing 16 fee. (Id.). Plaintiff failed to file a new IFP application and failed to pay the filing fee. 17 As to the first factor, the expeditious resolution of litigation is deemed to be in the public 18 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 19 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 21 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 22 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. The Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. Because the Court 25 cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds 26 that both the first and second factors weigh in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 2 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 3 occurrence of unreasonable delay in prosecuting an action. Anderson v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTIAN DAVID ENTO, Case No. 1:23-cv-00391-HBK (PC)
12 Plaintiff, ORDER DIRECTING CLERK TO ASSIGN ACTION TO DISTRICT JUDGE 13 v. 14 STATE OF ARKANSAS, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR A FAILURE TO 15 Defendants. OBEY COURT ORDER AND PROSECUTE
16 14-DAY DEADLINE
17 Plaintiff Christian David Ento is a state prisoner proceeding pro se in this civil rights 18 action. For the reasons set forth below, the undersigned recommends the District Court dismiss 19 this action for Plaintiff’s failure to comply with a court order and prosecute this action. 20 BACKGROUND 21 On March 20, 2023, the Court issued an order denying, without prejudice, Plaintiff’s 22 motion to proceed in forma pauperis (“IFP”) because it failed to comply with 28 U.S.C. § 23 1915(a)(1)(2). (Doc. No. 4). Specifically, Plaintiff did not submit a six-month statement and the 24 “Certificate” portion of his IFP application was blank. (Id.). Plaintiff was given twenty-one (21) 25 days to file a completed IFP application or pay the filing fee. (Id. at 2). As of the date of this 26 order, forty-two (42) days have passed, and Plaintiff has not filed a completed IFP application nor 27 paid the filing fee and the time to do so has expired. See docket. 1 APPLICABLE LAW AND ANALYSIS 2 A. Legal Standard 3 An action in federal court may only proceed with concurrent payment of the filing fee if 4 the court grants the party leave to proceed in forma pauperis (“IFP”) . 28 U.S.C. § 1915(a); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “[A] plaintiff seeking IFP status must 6 allege poverty with some particularity, definiteness and certainty.” Escobedo v. Applebees, 787 7 F.3d 1226, 1234 (9th Cir. 2015). As part of the Prison Reform Litigation Act, in addition to filing 8 an affidavit of indigency, a prisoner “shall submit a certified copy of the trust fund account 9 statement (or institutional equivalent) for the prisoner for the six-month period immediately 10 proceeding the filing of the complaint . . . obtained from the appropriate official of each prison at 11 which the prisoner is or was confined.” § 1915(a)(1)(2). Where a prisoner litigant provides a 12 deficient IFP application, a court cannot meaningfully assess whether the prisoner is entitled to 13 proceed in forma pauperis or whether they must pay a portion of the filing fee. Where, as here, a 14 pro se litigant fails to qualify for in forma pauperis status or pay the filing fee the court is not 15 required to take any further action on the action. Ruggles v. Ige, No. 20-CV-00247-DKW-KJM, 16 2020 WL 8838243, at *2 (D. Haw. June 17, 2020). Indeed, a district court “will be free to 17 dismiss the complaint” if the filing fee is not paid or application or proceed in forma pauperis is 18 not granted. Escobedo v. Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015). 19 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 20 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 21 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 22 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 23 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 24 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 25 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 26 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 27 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 1 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 2 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 3 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 4 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 5 to comply with local rules). 6 In determining whether to dismiss an action, the Court must consider several factors: 7 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 9 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 10 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 11 B. Analysis 12 The undersigned considers each of the above-stated factors and concludes dismissal is 13 warranted in this case. The Court’s March 20, 2023 Order determined Plaintiff’s IFP application 14 was deficient and instructed Plaintiff to file a new IFP application within twenty-one days of 15 receipt of the Order. (Doc. No. 4). Alternatively, Plaintiff was advised he could pay the filing 16 fee. (Id.). Plaintiff failed to file a new IFP application and failed to pay the filing fee. 17 As to the first factor, the expeditious resolution of litigation is deemed to be in the public 18 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 19 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 21 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 22 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. The Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. Because the Court 25 cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds 26 that both the first and second factors weigh in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 2 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 3 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 4 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 5 action, weighing in favor of dismissal for a risk of prejudice to defendants. 6 Finally, the fourth factor usually weighs against dismissal because public policy favors 7 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 8 “this factor lends little support to a party whose responsibility it is to move a case toward 9 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 10 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 11 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 12 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 13 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s 14 involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond 15 to court order and noting “the weight of the docket-managing factor depends upon the size and 16 load of the docket, and those in the best position to know what that is are our beleaguered trial 17 judges.”). 18 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 19 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 20, 2023, Order 21 expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 22 recommendation for dismissal of this action. (Doc. 4 at 2). Thus, Plaintiff had adequate warning 23 that dismissal could result from his noncompliance. And the instant dismissal is a dismissal 24 without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing 25 the fifth factor. 26 After considering the factors set forth supra and binding case law, the undersigned 27 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 1 Accordingly, it is ORDERED: 2 The Clerk of the Court randomly assign this case to a District Judge. 3 It is further RECOMMENDED: 4 This action be DISMISSED without prejudice for Plaintiff's failure to obey court orders 5 | and failure to prosecute. 6 NOTICE 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)d). Within 14 days 9 | of the date of service of these Findings and Recommendations, Plaintiff may file written 10 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 12 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 | Dated: _ May 1, 2023 Wiha. Mh. Bareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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