(PC) Luevano v. Mata

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL DAVID LUEVANO, Case No. 1:23-cv-01749-BAM (PC) 12 Plaintiff, ORDER TO DISMISS ACTION, WITHOUT PREJUDICE, FOR FAILURE TO OBEY 13 v. COURT ORDER AND FAILURE TO PROSECUTE 14 MATA, et al., (ECF No. 30) 15 Defendants.

16 17 I. Background 18 Plaintiff Daniel David Luevano (“Plaintiff”) is a former state prisoner proceeding pro se 19 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action 20 proceeds against Defendants Mota1 and Navarro (“Defendants”) for their delayed response to the 21 attack once it began on Plaintiff, in violation of the Eighth Amendment. All parties have 22 consented to United States Magistrate Judge jurisdiction. (ECF No. 28.) 23 On February 25, 2025, Defendants filed a motion to revoke Plaintiff’s in forma pauperis 24 status on the ground that Plaintiff was granted in forma pauperis status under 28 U.S.C. 25 § 1915(b)(1)’s prisoner provision, but Plaintiff is no longer a prisoner. (ECF No. 29.) 26 Defendants argued that the Court should revoke Plaintiff’s previously-granted IFP status, require 27 Plaintiff to submit an affidavit in support of any new request to proceed IFP under 28 U.S.C.

28 1 Erroneously sued as “Mata.” 1 § 1915(a)(1), and dismiss the action if Plaintiff fails to either pay the filing fee or submit a new 2 IFP application. (Id.) 3 The Court stayed briefing on Defendants’ motion and directed Plaintiff to file an 4 application to proceed in forma pauperis for a non-prisoner within thirty (30) days of service of 5 the order. (ECF No. 30.) Plaintiff was warned that failure to comply with the Court’s order 6 would result in dismissal of this action, without prejudice, for failure to prosecute and failure to 7 comply with a court order. (Id.) Plaintiff’s response was due on or before March 31, 2025. The 8 deadline has expired, and Plaintiff has failed to respond to the Court’s order or otherwise 9 communicate with the Court. 10 II. Failure to Prosecute and Failure to Obey a Court Order 11 A. Legal Standard 12 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 13 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 14 within the inherent power of the Court.” District courts have the inherent power to control their 15 dockets and “[i]n the exercise of that power they may impose sanctions including, where 16 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 17 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 18 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 19 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 20 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 21 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 22 (dismissal for failure to comply with court order). 23 In determining whether to dismiss an action, the Court must consider several factors: 24 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 25 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 26 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 27 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 28 /// 1 B. Discussion 2 Here, Plaintiff’s application to proceed in forma pauperis for a non-prisoner is overdue 3 and he has failed to comply with the Court’s order. The Court cannot effectively manage its 4 docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and second 5 factors weigh in favor of dismissal. 6 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 7 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 8 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 9 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 10 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 11 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 12 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 13 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 14 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 15 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 16 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s February 4, 2025 order 17 expressly warned Plaintiff that his failure to comply with the Court’s order would result in 18 dismissal of this action. (ECF No. 30.) Thus, Plaintiff had adequate warning that dismissal could 19 result from his noncompliance. 20 Additionally, at this stage in the proceedings there is little available to the Court that 21 would constitute a satisfactory lesser sanction while protecting the Court from further 22 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, or would be 23 proceeding in forma pauperis in this action, apparently making monetary sanctions of little use, 24 and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 25 ceased litigating his case. 26 III. Order 27 Accordingly, the Court finds that dismissal is the appropriate sanction and IT IS HEREBY 28 ORDERED as follows: 1 1. This action is DISMISSED, without prejudice, for failure to obey a Court order and for 2 Plaintiff’s failure to prosecute this action; and 3 2. The Clerk of the Court is directed to terminate all pending motions and deadlines and to 4 close this case. 5 IT IS SO ORDERED. 6

7 Dated: April 15, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8

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