(PC) Felix v. Clandenin

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:23-cv-00839-ADA-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 13 v. FOR FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 14 CLANDENIN, et al., (ECF No. 7) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 I. Background 18 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 19 rights action under 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and 20 Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the 21 Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 22 On June 5, 2023, the Court issued an order directing Plaintiff to submit a completed non- 23 prisoner application to proceed in forma pauperis or pay the $402.00 filing fee to proceed with 24 this action. (ECF No. 3.) 25 On July 13, 2023, Plaintiff filed a motion requesting various relief, and included as an 26 exhibit an unsigned application to proceed in forma pauperis. (ECF No. 6.) The Court denied 27 the motion to proceed in forma pauperis because it was not signed as required by Federal Rule of 28 Civil Procedure 11(a) and Local Rule 131(b), and directed Plaintiff to file a completed and signed 1 non-prisoner application to proceed in forma pauperis within thirty days. (ECF No. 7.) The 2 Court expressly warned Plaintiff that failure to comply with the Court’s order would result in 3 dismissal of this action. (Id.) The deadline has expired, and Plaintiff has failed to respond to the 4 Court’s order or otherwise communicate with the Court regarding his application or payment of 5 the filing fee. 6 II. Failure to Prosecute and Failure to Obey a Court Order 7 A. Legal Standard 8 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 9 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 10 within the inherent power of the Court.” District courts have the inherent power to control their 11 dockets and “[i]n the exercise of that power they may impose sanctions including, where 12 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 13 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 14 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 15 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 16 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 17 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 18 (dismissal for failure to comply with court order). 19 In determining whether to dismiss an action, the Court must consider several factors: 20 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 22 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 23 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 24 B. Discussion 25 Here, Plaintiff’s application to proceed in forma pauperis or payment of the filing fee is 26 overdue and he has failed to comply with the Court’s order. The Court cannot effectively manage 27 its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and 28 second factors weigh in favor of dismissal. 1 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 2 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 3 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 4 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 5 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 6 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 7 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 8 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 10 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s June 5, 2023 and July 13, 12 2023 orders expressly warned Plaintiff that his failure to comply with the Court’s order would 13 result in dismissal of this action. (ECF No. 3, p. 2; ECF No. 7, p. 4.) Thus, Plaintiff had adequate 14 warning that dismissal could result from his noncompliance. 15 Additionally, at this stage in the proceedings there is little available to the Court that 16 would constitute a satisfactory lesser sanction while protecting the Court from further 17 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, or would be 18 proceeding in forma pauperis in this action, apparently making monetary sanctions of little use, 19 and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 20 ceased litigating his case. 21 III. Recommendation 22 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 23 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 24 order and for Plaintiff’s failure to prosecute this action. 25 These Findings and Recommendation will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 1 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 2 specified time may result in the waiver of the “right to challenge the magistrate’s factual 3 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6

7 Dated: August 28, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8

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