Foster v. Roseville FBI Dept

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, Case No. 1:22-cv-01359-AWI-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR A FAILURE TO 13 v. OBEY COURT ORDER AND PROSECUTE ACTION 14 ROSEVILLE FBI DEPT., YUBA FBI DEPT. SAN JOSE FBI DEBT., 14-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Martine Foster is a state prisoner proceeding pro se in this civil rights action. For 18 the reasons set forth below, the undersigned recommends the District Court dismiss this action for 19 Plaintiff’s failure to comply with a court order and prosecute this action. 20 BACKGROUND 21 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 on 22 October 24, 2022. (Doc. 1). Plaintiff did not accompany the complaint with the $402.0 filing fee 23 or an application to proceed in forma pauperis under 28 U.S.C. § 1915. On November 10, 2022, 24 the Court issued an Order directing Plaintiff to file an application to proceed in forma pauperis or 25 pay the filing fee within 30 days. (Doc. 2). The Court enclosed a blank application with 26 instructions for Plaintiff’s use. (Doc. 2-1). In its November 10, 2022 Order, the Court expressly 27 warned Plaintiff that if failed to timely comply, the undersigned would recommend that the case be dismissed for failure to prosecute and failure to obey a court order. Doc. No. 2 at 1:21-24). 1 Plaintiff has failed to submit an application to proceed in forma pauperis or pay the filing fee to 2 proceed in this action and the time to do so has expired. 3 APPLICABLE LAW AND ANALYSIS 4 A. Legal Standard 5 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 6 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 7 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 8 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 9 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 10 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 11 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 12 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 13 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 14 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 15 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 16 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 17 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 18 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 19 to comply with local rules). In determining whether to dismiss an action, the Court must 20 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 21 Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 22 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 23 sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 24 B. Analysis 25 The undersigned considers each of the above-stated factors and concludes dismissal is 26 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 27 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 1 docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and 2 due to unfilled judicial vacancies, which was further exacerbated by the Covid-19 pandemic, 3 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 4 Judicial Emergency in the Eastern District of California. The Court’s time is better spent on its 5 other matters than needlessly consumed managing a case with a recalcitrant litigant. Because the 6 Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court 7 finds 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, 524 13 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 14 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 v. Galaza, 22 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s 23 involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond 24 to court order and noting “the weight of the docket-managing factor depends upon the size and 25 load of the docket, and those in the best position to know what that is are our beleaguered trial 26 judges.”). 27 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 1 | Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 10, 2022, 2 | Order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 3 || arecommendation for dismissal of this action. (Doc. 2 at 1:21-24). Thus, Plaintiff had adequate 4 | warning that dismissal could result from his noncompliance. And the instant dismissal is a 5 | dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 6 | addressing the fifth factor. 7 After considering the factors set forth supra and binding case law, the undersigned 8 | recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 9 Accordingly, it is RECOMMENDED: 10 This action be DISMISSED without prejudice for Plaintiff's failure to obey court orders 11 | and failure to prosecute. 12 NOTICE 13 These Findings and Recommendations will be submitted to the United States District 14 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 15 | of the date of service of these Findings and Recommendations, Plaintiff may file written 16 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 18 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 19 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). | Dated: _ December 14, 2022 Mihaw. Mh. Bareh Zaskth 1 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28