1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE WAGNER, Case No. 1:26-cv-00620-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 GONZALEZ, et al., DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY COURT ORDER 15 Defendants. AND FOR FAILURE TO PROSECUTE
16 (ECF Nos. 11, 13) 17 I. Background 18 Plaintiff Willie Wagner (“Plaintiff”) is currently a county jail inmate proceeding pro se in 19 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on January 16, 20 2026, together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) 21 On March 3, 2026, the Court determined that Plaintiff’s application to proceed in forma 22 pauperis was incomplete because Plaintiff failed to submit a certified copy of his trust account 23 statement and did not have an authorized officer from his institution of incarceration complete the 24 certificate portion of the form. (ECF No. 11.) The Court therefore ordered Plaintiff to file a 25 certified copy of his inmate trust account statement for the past six months or pay the $405.00 26 filing fee for this action within thirty days of service. (Id.) The Court warned Plaintiff that the 27 failure to comply with the order would result in dismissal of this action without prejudice. (Id.) 28 Plaintiff did not file a copy of his inmate trust account statement or pay the filing fee. 1 On March 19, 2026, Plaintiff filed a renewed motion to proceed in forma pauperis. (ECF 2 No. 12.) Plaintiff again failed to include a certified copy of his trust account statement for the 3 past six months or have an authorized officer from his institution of incarceration complete the 4 certificate portion of the form. The Court therefore granted Plaintiff a final opportunity to either 5 file a certified copy of his trust account statement for the past six months or pay the $405.00 filing 6 fee within thirty days of service. (ECF No. 13.) The Court warned Plaintiff that the failure to 7 comply with the order would result in dismissal of this action without prejudice. (Id.) Plaintiff 8 did not file a copy of his inmate trust account statement or pay the filing fee, and the time in 9 which to do so has expired. 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: (1) 24 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 trust account statement or payment of the filing fee is overdue, and he has 3 failed to comply the with the Court’s orders. The Court cannot effectively manage its docket if 4 Plaintiff ceases to prosecute this action as directed. Thus, the Court finds that both the first and 5 second 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 orders issued on March 3, 17 2026, and April 20, 2026, warned Plaintiff that his failure to file a certified copy of his trust 18 account statement or to pay the filing fee would result in dismissal of this action. (ECF No. 11 at 19 2; ECF No. 13 at 2.) Thus, Plaintiff had adequate warning that dismissal could result from his 20 noncompliance. 21 Additionally, at this stage in the proceedings there is little available to the Court that 22 would constitute a satisfactory lesser sanction while protecting the Court from further 23 unnecessary expenditure of its scarce resources. As Plaintiff has applied to proceed in forma 24 pauperis and has failed to pay the filing fee, monetary sanctions likely would be of little use. 25 Further, the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 26 ceased litigating his case as directed by the Court. 27 III. Conclusion and Recommendation 28 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 1 District Judge to this action. 2 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 3 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a court order 4 and for Plaintiff’s failure to prosecute this action. 5 These Findings and Recommendation will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or 10 include exhibits.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE WAGNER, Case No. 1:26-cv-00620-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 GONZALEZ, et al., DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY COURT ORDER 15 Defendants. AND FOR FAILURE TO PROSECUTE
16 (ECF Nos. 11, 13) 17 I. Background 18 Plaintiff Willie Wagner (“Plaintiff”) is currently a county jail inmate proceeding pro se in 19 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on January 16, 20 2026, together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) 21 On March 3, 2026, the Court determined that Plaintiff’s application to proceed in forma 22 pauperis was incomplete because Plaintiff failed to submit a certified copy of his trust account 23 statement and did not have an authorized officer from his institution of incarceration complete the 24 certificate portion of the form. (ECF No. 11.) The Court therefore ordered Plaintiff to file a 25 certified copy of his inmate trust account statement for the past six months or pay the $405.00 26 filing fee for this action within thirty days of service. (Id.) The Court warned Plaintiff that the 27 failure to comply with the order would result in dismissal of this action without prejudice. (Id.) 28 Plaintiff did not file a copy of his inmate trust account statement or pay the filing fee. 1 On March 19, 2026, Plaintiff filed a renewed motion to proceed in forma pauperis. (ECF 2 No. 12.) Plaintiff again failed to include a certified copy of his trust account statement for the 3 past six months or have an authorized officer from his institution of incarceration complete the 4 certificate portion of the form. The Court therefore granted Plaintiff a final opportunity to either 5 file a certified copy of his trust account statement for the past six months or pay the $405.00 filing 6 fee within thirty days of service. (ECF No. 13.) The Court warned Plaintiff that the failure to 7 comply with the order would result in dismissal of this action without prejudice. (Id.) Plaintiff 8 did not file a copy of his inmate trust account statement or pay the filing fee, and the time in 9 which to do so has expired. 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: (1) 24 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 trust account statement or payment of the filing fee is overdue, and he has 3 failed to comply the with the Court’s orders. The Court cannot effectively manage its docket if 4 Plaintiff ceases to prosecute this action as directed. Thus, the Court finds that both the first and 5 second 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 orders issued on March 3, 17 2026, and April 20, 2026, warned Plaintiff that his failure to file a certified copy of his trust 18 account statement or to pay the filing fee would result in dismissal of this action. (ECF No. 11 at 19 2; ECF No. 13 at 2.) Thus, Plaintiff had adequate warning that dismissal could result from his 20 noncompliance. 21 Additionally, at this stage in the proceedings there is little available to the Court that 22 would constitute a satisfactory lesser sanction while protecting the Court from further 23 unnecessary expenditure of its scarce resources. As Plaintiff has applied to proceed in forma 24 pauperis and has failed to pay the filing fee, monetary sanctions likely would be of little use. 25 Further, the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 26 ceased litigating his case as directed by the Court. 27 III. Conclusion and Recommendation 28 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 1 District Judge to this action. 2 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 3 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a court order 4 and for Plaintiff’s failure to prosecute this action. 5 These Findings and Recommendation will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or 10 include exhibits. Exhibits may be referenced by document and page number if already in 11 the record before the Court. Any pages filed in excess of the 15-page limit may not be 12 considered. Plaintiff is advised that failure to file objections within the specified time may result 13 in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. 14 Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 15 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17
18 Dated: May 27, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19
22 23 24 25 26 27 28