(PC) Henderson v. Mejia

Opinion

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9 10 CURTIS LEE HENDERSON, SR., Case No. 1:22-cv-00072-AWI-BAK (BAM) (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 12 v. FOR FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 13 RALPH MEJIA, et al.,

14 Defendants. (ECF No. 13) 15 FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Curtis Lee Henderson, Sr., is a state prisoner proceeding pro se in this civil 18 rights action under 42 U.S.C. § 1983. On January 19, 2022, Plaintiff initiated this action by 19 filing a complaint asserting a First Amendment retaliation claim against Defendants. (ECF No. 20 1.) At the same time, Plaintiff filed a motion to proceed in forma pauperis. (ECF No. 2.) 21 On April 1, 2022, the Court denied Plaintiff’s motion upon a determination that Plaintiff 22 has three “strikes” under section 1915(g) and the complaint fails to show that he was in imminent 23 danger of serious physical injury at the time of filing. (ECF No. 13; see also ECF No. 11.) The 24 Court ordered Plaintiff to pay the $402.00 initial filing fee to proceed with this action and 25 cautioned: “The failure of Plaintiff to comply with this Order will result in a dismissal of this 26 case for failure to comply with a court order and failure to prosecute.” (ECF No. 13.) More than 27 forty-five days have passed, and Plaintiff has failed to comply with the order and prosecute this action by paying the filing fee. 2 A. Local Rules and Inherent Power of Court 3 Under the Local Rules of this district, this Court has the authority to impose any 4 appropriate sanction to enforce its orders: “Failure of counsel or of a party to comply with . . . any 5 order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . 6 within the inherent power of the Court.” L.R. 110. Individuals proceeding pro se are bound by 7 the Court’s Local Rules the same as licensed attorneys. See L.R. 183 (“Any individual 8 representing himself or herself without an attorney is bound by the Federal Rules of Civil or 9 Criminal Procedure, these Rules, and all other applicable law. All obligations placed on ‘counsel’ 10 by these Rules apply to individuals appearing in propria persona.”). 11 “District courts have inherent power to control their dockets” and in exercising that 12 power, may impose sanctions, including dismissal of an action. Thompson v. Hous. Auth., City of 13 Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s 14 failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. 15 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with a court 16 order to amend a complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–31 (9th Cir. 1987) 17 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 18 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 19 B. Rule 41(b) 20 Rule 41(b) of the Federal Rules of Civil Procedure authorizes courts to dismiss an action 21 for failure to comply with a court order. Although that rule appears to contemplate that dismissal 22 will be precipitated by a motion from the opposing party, a court may act sua sponte under Rule 23 41(b). Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 24 640–43 (9th Cir. 2002) (affirming district court’s sua sponte dismissal of habeas petition with 25 prejudice “for failure to prosecute and failure to comply with a court order”). 27 A. Consideration of Factors Warranting Dismissal 1 Court recommends the dismissal of this action. In considering whether to dismiss an action for 2 failure to comply with a court order, the Court must weigh five factors: “(1) the public’s interest 3 in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 4 prejudice to the defendants; (4) the availability of less drastic alternatives; and (5) the public 5 policy favoring disposition of cases on their merits.” See Pagtalunan, 291 F.3d at 642 (citing 6 Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 7 The Ninth Circuit has explained that “[t]he public’s interest in expeditious resolution of 8 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642. Here, the Court ordered 9 Plaintiff to pay the filing fee “to proceed with this action.” (ECF No. 13.) Plaintiff’s failure to 10 comply with this order has stalled the case and prevents expeditious resolution of the case. 11 Therefore, the first factor favors dismissal. 12 The Court’s need to manage is docket also weighs in favor of dismissal. The second 13 factor focuses on whether a particular case has “consumed large amounts of [a district] court's 14 valuable time that it could have devoted to other major and serious criminal and civil cases on 15 its docket.” See Ferdik, 963 F.2d at 1261 (“It is incumbent upon us to preserve the district 16 courts’ power to manage their dockets without being subject to the endless vexatious 17 noncompliance of litigants like Ferdik.”). This Court has already devoted time to reviewing the 18 Plaintiff’s prior lawsuits that were dismissed on the grounds that they were frivolous or failed to 19 state a claim; reviewing the complaint to determine whether Plaintiff was under imminent 20 danger of serious physical injury at the time of filing; and considering Plaintiff’s objections to 21 the recommendation to deny Plaintiff’s motion to proceed in forma pauperis. (See ECF Nos. 22 11–13.) Additionally, the Court has been tracking the docket in anticipation of payment of the 23 filing fee. This case, only to be stalled by Plaintiff’s failure to prosecute, has diverted the 24 Court’s attention from the voluminous number of other cases pending that are competing for its 25 limited resources. Thus, the factor of the Court’s need to manage its docket weighs strongly in 26 favor of dismissal. 27 The third factor—prejudice to the Defendants—does not support dismissal. “A 1 or threaten to interfere with the rightful decision of the case.” In re Phenylpropanolamine 2 Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (quoting Adriana Int’l Corp. v. 3 Thoerren, 913 F.2d 1406, 1412 (9th Cir.1990)). Here, no defendants have been served and 4 brought into the action because of Plaintiff’s failure to advance the case by paying the filing fee. 5 The fourth factor―less drastic alternatives―also weighs in favor of dismissal. Less 6 drastic alternatives to dismissal include, inter alia, a warning to a party that dismissal could 7 result from failure to obey a court order. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 n.1 8 (9th Cir. 1987). The Court considered lesser sanctions, but no lesser sanction is warranted. 9 Monetary sanctions are worthless because money cannot rectify or moderate Plaintiff’s conduct. 10 Plaintiff has demonstrated an unwillingness to abide by court orders. Evidentiary sanctions 11 would not correct the conduct because they would not halt Plaintiff from attempting to multiply 12 proceedings or force him to comply with court orders and rules of procedure. The Ninth Circuit 13 has explained that “[a] district court need not exhaust every sanction short of dismissal before 14 finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson v. 15 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Furthermore, “a district court’s warning to a 16 party that his failure to obey the court’s order will result in dismissal can satisfy the 17 ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262. As explained above, 18 Plaintiff was adequately warned that his case would be dismissed if he failed to comply with the 19 order to pay the filing fee. 20 The fifth factor—the public policy favoring the disposition of cases on their merits— 21 ordinarily weighs against dismissal. See In re Phenylpropanolamine Prods. Liab. Litig., 460 22 F.3d 1217, 1228 (9th Cir. 2006). However, Plaintiff’s failure to prosecute this case by paying 23 the filing fee prevents this case from advancing to disposition of this case on its merits. This 24 factor weighs only slightly against dismissal. 25 In sum, the five-factor analysis supports a recommendation for dismissal of this case. 26 B. Prior Warnings were Given in Clear and Explicit Terms 27 Before ordering a terminating sanction, a court must warn the offending parties and try 1 being considered as a sanction weighs heavily against the sanction. U.S. for Use and Ben. of 2 Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d 600, 605 (9th Cir.1988). The Court 3 ordered Plaintiff to pay the $402.00 initial filing fee to proceed with this action and cautioned: 4 “The failure of Plaintiff to comply with this Order will result in a dismissal of this case for 5 failure to comply with a court order and failure to prosecute.” (ECF No. 13.) Despite this 6 warning, Plaintiff failed to comply with the Court’s order. 8 Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED 9 WITH PREJUDICE for failure to comply with a court order and failure to prosecute. 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 12 of the date of service of these Findings and Recommendations, Plaintiff may file written 13 objections with the Court. The document should be captioned, “Objections to Magistrate 14 Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the 15 specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18

19 Dated: May 31, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20

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