(PC) Geray v. Cates

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON GERAY, Case No. 1:21-cv-00593-JLT-HBK (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO 13 v. OBEY COURT ORDER AND PROSECUTE1

14 BRIAN CATES and K. NOUWEIS, 14-DAY DEADLINE

15 Defendants. 16 17 18 Plaintiff Jason Geray is a former state prisoner proceeding pro se in this civil rights action. 19 For the reasons set forth below, the undersigned recommends the District Court dismiss this 20 action for Plaintiff’s failure to comply with court orders and prosecute this action. 21 BACKGROUND 22 On August 1, 2023, the Court screened Plaintiff’s Complaint and found that Plaintiff’s 23 failure to exhaust his administrative remedies was apparent on the face of the Complaint and 24 directed Plaintiff to show cause by September 1, 2023 why the Complaint should not be 25 dismissed on that basis. (Doc. No. 23 at 4-5, 8 ¶ 1). The Court further found that Plaintiff’s 26 Complaint alleging First Amendment violations stemming from correctional officials’ rejection of 27

1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 1 a publication on the grounds it contained sexually explicit materials failed to state any cognizable 2 federal claim. (See generally id.). The Court afforded Plaintiff three options: (1) file an 3 amended complaint; (2) file a notice that he intends to stand on his initial complaint subject to the 4 undersigned recommending the district court dismiss for reasons stated in the August 1, 2023 5 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 6 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 7-8). 7 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order or seek 8 an extension of time to comply” the undersigned “will recommend that the district court dismiss 9 this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute this 10 action.” (Id. at 8, ¶ 3). The Court granted Plaintiff an extension until October 2, 2023 to respond 11 to the August 1, 2023 Screening Order. (Doc. No. 26). To date, Plaintiff has not filed any 12 response to the Court’s August 1, 2023 Screening Order and the time to do so has expired. (See 13 docket). 14 Additionally, on May 4, 2021, the Court granted Plaintiff’s Motion to Proceed in forma 15 pauperis under 28 U.S.C. § 1915. (See Doc. No. 10). At the time Plaintiff was granted IFP status 16 he was incarcerated at California Correctional Institution in Tehachapi, California. (Doc. No. 5). 17 On May 8, 2023, Plaintiff filed a change of address indicating that he had been released from 18 custody, which the Court independently confirmed through CDCR’s Inmate Locator. (See Doc. 19 No. 21). On August 29, 2023, the Court issued an order directing Plaintiff to either pay the 20 remaining filing fee of $350 or complete a new long form in forma pauperis (“IFP”) application 21 because the fee collection provision of 28 U.S.C. § 1915 was no longer enforceable against 22 Plaintiff. (Doc. No. 27). The August 29, 2023 Order gave Plaintiff until September 29, 2023 to 23 comply. (Id. at 3). As of the date of these Findings and Recommendation, Plaintiff has neither 24 filed an updated IFP application nor paid the filing fee, and the time to do so has expired.2 (See 25 docket.) 26 //// 27 2 Because Plaintiff is no longer incarcerated, he is not entitled to the mailbox rule. Nonetheless, these Findings and 1 APPLICABLE LAW 2 A. Failure to Prosecute 3 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 4 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 5 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 6 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 7 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . any order of 8 the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the 9 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 10 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 11 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 12 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 13 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 14 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 15 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 16 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 17 to comply with local rules). 18 In determining whether to dismiss an action, the Court must consider several factors: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 20 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 21 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 22 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 23 B. Plaintiff’s Continuing Obligation to Pay the Filing Fee 24 All parties instituting any civil action, suit, or proceeding in a district court of the United 25 States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28 26 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only 27 if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 1 The fee is not waived for prisoners, however. If granted leave to proceed IFP, a prisoner 2 nevertheless remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 3 Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 4 regardless of whether his action is dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); 5 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 6 To qualify for IFP status, section 1915(a)(2) requires a prisoner to submit a “certified copy 7 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 9 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court 10 assesses an initial payment of twenty percent of (a) the average monthly deposits in the account 11 for the past six months, or (b) the average monthly balance in the account for the past six months, 12 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1), (4). The 13 institution having custody of the prisoner then collects subsequent payments, assessed at twenty 14 percent of the preceding month’s income, in any month in which his account exceeds ten dollars, 15 and forwards those payments to the Court until the entire filing fee is paid. See id. § 1915(b)(2); 16 Bruce, 577 U.S. at 84. 17 Plaintiff was incarcerated at Federal Correctional Institution, Mendota when he filed this 18 action. (See Doc. Nos. 2, 6). However, Plaintiff's release from custody renders 28 U.S.C. 19 § 1915(b)’s fee collection provisions unenforceable in this case. Because Plaintiff is no longer 20 incarcerated at FCI Mendota and is no longer in the custody of any correctional institution as his 21 Notice of Change of Address indicates, (see Doc No. 8), no inmate trust account exists from 22 which his filing fees may be garnished and forwarded to the court. See DeBlasio v. Gilmore, 315 23 F.3d 396, 399 (4th Cir. 2010) (noting that, after a prisoner is released, there is “no ‘prisoner’s 24 account’ from which to deduct . . . payments”). “Section 1915(b)(2) provides no method of 25 remitting payments other than by deduction from a prisoner’s account, and thus it does not shed 26 any light on how payments should be paid once that prisoner is released.” Id. 27 The Ninth Circuit has yet to decide how a released prisoner who is obligated to “pay the 1 released—i.e., whether he must prepay the entire civil filing fee at once, whether he may proceed 2 pursuant to some other partial fee and/or court-ordered installment payment plan, or whether his 3 obligation to pay the fee is waived altogether or in part by virtue of his release. See Putzer v. 4 Attal, 2013 WL 4519351, at *1 (D. Nev. Aug. 23, 2013) (noting the “unresolved issue within the 5 Ninth Circuit regarding the application of the Prison Litigation Reform Act (PLRA) pauper 6 application requirements in cases where the prisoner is released pendente lite, i.e., during the 7 litigation”); see also Turner v. San Diego Cnty., 2014 WL 5800595, at *2–3 (S.D. Cal. Nov. 7, 8 2014) (noting absence of Ninth Circuit authority addressing this issue); Patten v. Walker, 2015 9 WL 3623687, at *5 (E.D. Cal. June 9, 2015) (same). 10 However, other circuits and district courts in California have found the statutory language 11 of § 1915(b)(1) requires released prisoners to pay the amounts still due after their release if they 12 wish to continue to prosecute their action. Gay v. Tex. Dep’t of Corr., 117 F.3d 240, 241–42 (5th 13 Cir. 1997); In re Smith, 114 F.3d 1247, 1251–52 (D.C. Cir. 1997); Robbins v. Switzer, 104 F.3d 14 895, 897–99 (7th Cir. 1997); Townsend v. Rendon, 2022 WL 1462181, at *2 (E.D. Cal. April 1, 15 2022) (directing released inmate to “either pay the filing fee in full or submit a complete[d] 16 application to proceed in forma pauperis by a non-prisoner”); Makoni v. Downs, 2016 WL 17 7210403, at *4 (S.D. Cal. Dec. 13, 2016) (denying released prisoner’s initial IFP motion and 18 requiring supplemental post-release IFP motion); Flynn v. Canlas, 2015 WL 8492503, at *4 (S.D. 19 Cal. Dec. 10, 2015) (same); Adler v. Gonzalez, 2015 WL 4041772, at *2 (E.D. Cal. July 1, 2015) 20 (requiring “updated IFP application” of released prisoner because court “ha[d] before it no 21 evidence that Plaintiff [remained] a pauper,” and the “[c]ircumstances that undoubtedly 22 contributed to his impoverishment, i.e., imprisonment, no longer exist”); Olivares v. Marshall, 59 23 F.3d 109, 112 (9th Cir. 1995) (remanding fee payments to district court in order to “review 24 [plaintiff's] present economic situation and fit a fee to the economic facts if [he was] still 25 interested in pursuing his claim”). 26 The Court advised Plaintiff that for this case to proceed further, he must pay $350.00 (the 27 total amount that remains due toward the $350.00 filing fee) in one lump sum no later than 1 this amount in one lump sum, he was to file a renewed motion to proceed IFP providing a 2 complete picture of his current financial situation, including an explanation as to his ability to 3 provide basic necessities for himself. (Id. at 3). Because he has failed to either pay the remaining 4 fee balance of $350.00 or submit an updated IFP application, the undersigned recommends 5 Plaintiff’s case be dismissed without prejudice. See Townsend v. Rendon, 2023 WL 4534535 6 (E.D. Cal. July 13, 2023) (adopting F&R recommending released prisoner plaintiff’s IFP status be 7 revoked, and advising plaintiff that failure to pay remaining balance or submit updated IFP 8 application will result in dismissal); Adler, 2015 WL 4041772, at *2 (same), report and 9 recommendation adopted, 2015 WL 4668668 (E.D. Cal. Aug. 6, 2015); Escobedo, 787 F.3d at 10 1228 (finding that a district court “will be free to dismiss the complaint” if the filing fee is not 11 paid or application to proceed in forma pauperis is not granted); see also In re Perroton, 958 F.2d 12 889, 890 (9th Cir. 1992) (affirming dismissal of pro se litigant’s claim for failure to pay required 13 filing fees). Thus, the undersigned recommends that the district court dismiss this case for 14 Plaintiff’s failure to comply with the Court’s July 17, 2023 Order. 15 ANALYSIS 16 The undersigned considers each of the above-stated factors and concludes dismissal is 17 warranted in this case. The Court’s August 1, 2023 Screening Order directed Plaintiff to show 18 cause why his Complaint should not be dismissed for failure to exhaust his administrative 19 remedies; and, alternatively directed Plaintiff to choose one of three options in response to the 20 Screening Order finding the Complaint failed to state a cognizable federal claim. (Doc. No. 23). 21 Despite being granted an extension of time, Plaintiff has failed to do either. (See docket). 22 Additionally, the Court’s August 29, 2023 Order directed Plaintiff to file a new IFP application 23 within thirty (30) days of receipt of the Order or pay the filing fee if he wishes to continue to 24 prosecute this action. (Doc. No. 27). Again, Plaintiff has failed to either file a new IFP 25 application or pay the filing fee. (See docket). 26 As to the first factor, the expeditious resolution of litigation is deemed to be in the public 27 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 2 filling judicial vacancies, which was exacerbated by the COVID-19 pandemic, operates under a 3 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 4 Emergency in the Eastern District of California. The Court’s time is better spent on its other 5 matters than needlessly consumed managing a case with a recalcitrant litigant. Because the Court 6 cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds 7 that both the first and second factors weigh in favor of dismissal. 8 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 9 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 10 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 11 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 12 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 13 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 14 action, weighing in favor of dismissal for a risk of prejudice to defendants. 15 Finally, the fourth factor usually weighs against dismissal because public policy favors 16 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 17 “this factor lends little support to a party whose responsibility it is to move a case toward 18 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 19 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 20 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 21 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan, 291 F.3d at 22 644 (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice of 23 habeas petition where petitioner failed to timely respond to court order and noting “the weight of 24 the docket-managing factor depends upon the size and load of the docket, and those in the best 25 position to know what that is are our beleaguered trial judges.”). 26 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 27 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 1 | Screening Order, the August 29, 2023 Order granting an extension of time, and the August 29, 2 | 2023 Order directing Plaintiff to file an updated IFP or pay the filing fee, each expressly warned 3 | Plaintiff that his failure to timely comply with the Court’s respective order would result in a 4 || recommendation of dismissal of this action for his failure to prosecute this action. (See Doc. Nos. 5 | 23 at 43, 26 at 92, and 27 at 94). Thus, Plaintiff had adequate warning that dismissal could result 6 || from his noncompliance. And the instant dismissal is a dismissal without prejudice, which is a 7 | lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 8 After considering the factors set forth supra and binding case law, in the alternative, the 9 | undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 10 | 110. 11 Accordingly, it is RECOMMENDED: 12 This action be DISMISSED without prejudice. 13 NOTICE 14 These Findings and Recommendations will be submitted to the United States District 15 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 16 | of the date of service of these Findings and Recommendations, Plaintiff may file written 17 || objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 19 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 *° | Dated: _ October 16, 2023 Wiha. □□ fares Zackte 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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