Wheeler v. Obama, No. 1:2012cv01815 - Document 9 (E.D. Cal. 2012)
Court Description: ORDER GRANTING Plaintiff's Motion for Extension of Time 5 ; FINDINGS and RECOMMENDATIONS Dismissing the Action for Plaintiff's Failure to Comply with the Court's Order and Pre-Filing Restrictions, signed by Magistrate Judge Jennifer L. Thurston on 12/7/2012. Referred to Judge Ishii. Objections to F&R due by 12/21/2012. (Hall, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN FREDERICK WHEELER, 12 Plaintiff, 13 v. 14 15 BARACK OBAMA, et al., Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-01815 - AWI - JLT ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME (Doc. 5) FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND PRE-FILING RESTRICTIONS John Frederick Wheeler (“Plaintiff”) seeks to proceed pro se and in forma pauperis in this 18 19 action initiated on November 5, 2012. For the following reasons, the Court recommends the action be 20 DISMISSED. 21 I. 22 Procedural Background Plaintiff was declared a vexatious litigant by this Court, and pre-filing restrictions have been 23 imposed.1 Specifically, on September 10, 2012, the Court ordered: “As a pre-filing condition to 24 initiating any new action before the Court, Plaintiff SHALL (1) attach a copy of [the vexatious litigant] 25 26 27 28 1 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The Court’s records are sources whose accuracy cannot reasonably be questioned, and judicial notice may be taken of the records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff’d, 645 F.2d 699 (9th Cir. 1981.Therefore, judicial notice is taken of the Court’s records in Wheeler v. United States, Case No.1:12-cv-00641-LJO-JLT. 1 1 Order to his Complaint and (2) pay the requisite filing fee.” Wheeler v. United States, Case. No. 1:12- 2 cv-00641-LJO-JLT (Doc. 18 at 11). Although Plaintiff now seeks to initiate a new action before the 3 Court, he failed to comply with the Court’s order. 4 On November 19, 2012, the Court issued an order to show cause to demonstrate why the action 5 should not be dismissed for Plaintiff’s failure to comply with the Court’s order, or in the alternative, to 6 comply with the pre-filing conditions ordered by the Court. (Doc. 4). Plaintiff filed his response to the 7 Court’s order on December 3, 2012.2 (Doc. 7). In his response, Plaintiff takes issue with the vexatious litigant order. In particular, he 8 9 complains that it is unfair to impose the requirement that he pay the filing fee given his limited 10 financial resources. However, notably, before Plaintiff was declared vexatious, he filed no fewer than 11 fourteen actions that were frivolous and lacking in merit. See Wheeler v. United States, Case No. 1:12- 12 cv-00641 (Doc. 18) (“Order Declaring Plaintiff a Vexatious Litigant and Imposing Pre-Filing 13 Restrictions”). Before this occurred, Plaintiff was warned repeatedly that continuing to file frivolous 14 cases would result in an order declaring him to be vexatious. Despite this warning, Plaintiff continued 15 completely undeterred. Finally, though Plaintiff makes much of the burden of paying the filing fee places on him, he 16 17 ignores completely, the burden his repeated filing of cases that lack any semblance of merit, places on 18 this Court. He is advised that this District carries the highest weighted caseload per judge of any court 19 in the entire federal system and it cannot allow itself to by hijacked by one litigant who chooses to use 20 the Court’s limited judicial resources as a form of personal entertainment; this cannot and will not be 21 tolerated. 22 II. 23 Failure to Obey the Court’s Order The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 24 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 25 and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District courts have 26 inherent power to control their dockets,” and in exercising that power, a court may impose sanctions 27 28 2 Plaintiff filed a motion for an extension of time to file his response, requesting the Court consider his response to the order to show cause as timely. (Doc. 4). Plaintiff’s motion for extension of time is GRANTED. 2 1 including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 2 (9th Cir. 1986). A court may dismiss an action, based on a party’s failure to obey a court order. See, 3 e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 4 court order); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (same). 5 III. Discussion and Analysis In determining whether to dismiss an action for failure to prosecute and failure to obey a court 6 7 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 8 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 9 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 10 of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986); see also 11 Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831. 12 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 13 Court’s interest in managing the docket weigh in favor of dismissal. Plaintiff was declared a vexatious 14 litigant for his frequent filing of unmeritorious claims, which forced the Court to expend its limited 15 judicial resources reviewing his complaints. The risk of prejudice to the defendants also weighs in 16 favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 17 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Finally, the Court’s warning to Plaintiff that failure to comply with the Court’s orders would 18 19 result in dismissal satisfies the requirement that the Court consider less drastic measures. Ferdik, 963 20 F.2d at 1262; Henderson, 779 F.2d at 1424. In the order to show cause, the Court warned that it “may 21 dismiss an action with prejudice, based upon a party’s failure to prosecute an action or failure to obey 22 a court order . . .” (Doc. 4 at 2). Thus, Plaintiff had adequate warning that dismissal would result 23 from his failure to comply with the Court’s order. Given these facts, the Court finds the policy 24 favoring disposition of cases on the merits is outweighed by the factors in favor of dismissal. 25 IV. 26 27 Findings and Recommendations The factors set forth by Ninth Circuit weigh in favor of dismissal of the action. Therefore, the Court is within its discretion to dismiss the action for Plaintiff’s failure to comply with the Court’s 28 3 1 orders and pre-filing restrictions. 2 Accordingly, IT IS HEREBY RECOMMENDED: 3 1. Plaintiff’s Complaint be DISMISSED without prejudice; and 4 2. The Clerk of Court be DIRECTED to close this action. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 7 Rules of Practice for the United States District Court, Eastern District of California. Within 14 days 8 after being served with these findings and recommendations, Plaintiff may file written objections with 9 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Plaintiff is advised failure to file objections within the specified time may waive 11 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 15 16 IT IS SO ORDERED. Dated: December 7, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9j7khijed 17 18 19 20 21 22 23 24 25 26 27 28 4
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