(PC) Zinman v. Video AVSS/BWC in form of 33422

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JUSTIN MARCUS ZINMAN, Case No. 1:25-cv-00620-KES-BAM (PC) 7 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 8 v. FOR FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 9 VIDEO AVSS/BWC IN FORM OF 33422, et al., (ECF No. 4) 10 Defendants. FOURTEEN (14) DAY DEADLINE 11 12 I. Background 13 Plaintiff Justin Marcus Zinman (“Plaintiff”) is a state prisoner proceeding pro se in this 14 civil rights action pursuant to 42 U.S.C. § 1983. 15 On May 27, 2025, the Court issued an order directing Plaintiff to submit a completed 16 application to proceed in forma pauperis or pay the $405.00 filing fee to proceed with this action. 17 (ECF No. 4.) The Court expressly warned Plaintiff that failure to comply with the Court’s order 18 would result in dismissal of this action. (Id.) The deadline has expired, and Plaintiff has failed to 19 respond to the Court’s order or otherwise communicate with the Court regarding his application 20 or payment of the filing fee. 21 II. Failure to Prosecute and Failure to Obey a Court Order 22 A. Legal Standard 23 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 24 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 25 within the inherent power of the Court.” District courts have the inherent power to control their 26 dockets and “[i]n the exercise of that power they may impose sanctions including, where 27 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 28 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 1 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 2 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 3 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 4 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 5 (dismissal for failure to comply with court order). 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 v. Duncan, 779 10 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 11 B. Discussion 12 Here, Plaintiff’s application to proceed in forma pauperis or payment of the filing fee is 13 overdue and he has failed to comply with the Court’s order. The Court cannot effectively manage 14 its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and 15 second factors weigh in favor of dismissal. 16 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 17 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 18 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 19 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 20 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 21 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 22 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 23 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 24 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 25 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 26 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s May 27, 2025 order expressly 27 warned Plaintiff that his failure to comply with the Court’s order would result in dismissal of this 28 action. (ECF No. 4.) Thus, Plaintiff had adequate warning that dismissal could result from his 1 noncompliance. 2 Additionally, at this stage in the proceedings there is little available to the Court that 3 would constitute a satisfactory lesser sanction while protecting the Court from further 4 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, or would be 5 proceeding in forma pauperis in this action, apparently making monetary sanctions of little use, 6 and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 7 ceased litigating his case. 8 III. Recommendation 9 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 10 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 11 order and for Plaintiff’s failure to prosecute this action. 12 These Findings and Recommendation will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 14 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 15 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or 17 include exhibits. Exhibits may be referenced by document and page number if already in 18 the record before the Court. Any pages filed in excess of the 15-page limit may not be 19 considered. The parties are advised that failure to file objections within the specified time may 20 result in the waiver of the “right to challenge the magistrate’s factual findings” on 21 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 22 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24

25 Dated: July 15, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26

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