(PC) Coleman v. Unknown, No. 1:2022cv00303 - Document 10 (E.D. Cal. 2022)

Court Description: ORDER directing Clerk of Court to randomly assign a District Judge to this action. FINDINGS and RECOMMENDATIONS recommending dismissal of the action 8 signed by Magistrate Judge Stanley A. Boone on 6/1/2022. Referred to Judge Dale A. Drozd; Objections to F&R's due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ORLANDO COLEMAN, 12 Plaintiff, 13 14 v. UNKNOWN, 15 Defendant. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:22-cv-00303-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THE ACTION (ECF No. 8) Plaintiff Orlando Coleman is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 20 I. 21 BACKGROUND 22 On March 16, 2022, the Court ordered Plaintiff to submit a complete application to proceed in 23 forma pauperis or pay the $402.00 filing fee within forty-five days. (ECF No. 7.) Plaintiff failed to 24 comply with the Court’s order and an order to show cause why the action should not be dismissed was 25 issued on May 9, 2022. Plaintiff has failed to respond to the order to show cause and the time to do so 26 has passed. Accordingly, dismissal is warranted. 27 /// 28 /// 1 1 2 II. 3 LEGAL STANDARD 4 Local Rule 110 provides that “[f]ailure...of a party to comply with these Rules or with any 5 order of the Court may be grounds for imposition by the Court of any and all sanctions...within the 6 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 7 the exercise of that power they may impose sanctions including, where appropriate,...dismissal.” 8 Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). 9 A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, 10 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 11 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 12 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 13 complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to 14 comply with court order). 15 In determining whether to dismiss an action, the Court must consider several factors: (1) the 16 public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) 17 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 18 merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 19 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 20 III. 21 DISCUSSION 22 Here, Plaintiff's application to proceed in forma pauperis is overdue, he has not paid the filing 23 fee for this action, and he has failed to comply with the Court's order. The Court cannot effectively 24 manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and 25 second factors weigh in favor of dismissal. 26 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 27 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 28 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 2 1 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 2 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to 3 move a case toward disposition on the merits but whose conduct impedes progress in that direction,” 4 which is the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 5 1228 (9th Cir. 2006) (citation omitted). 6 Finally, the Court's warning to a party that failure to obey the court's order will result in 7 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 8 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court's May 9, 2022 order expressly 9 warned Plaintiff that his failure to comply with the Court's order would result in a dismissal of this 10 action. (ECF No. 8.) Thus, Plaintiff had adequate warning that dismissal could result from his 11 noncompliance. 12 Additionally, at this stage in the proceedings there is little available to the Court that would 13 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 14 expenditure of its scarce resources. Plaintiff has not paid the filing fee, and will likely attempt to 15 proceed in forma pauperis in this action, apparently making monetary sanctions of little use, and the 16 preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating 17 his case. 18 IV. 19 CONCLUSION AND RECOMMENDATION 20 21 22 Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a district judge to this action. Further, the Court finds that dismissal is the appropriate sanction and HEREBY 23 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court order, 24 failure to pay the filing fee, and for Plaintiff's failure to prosecute this action. 25 This Findings and Recommendation will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 27 after being served with this Findings and Recommendation, Plaintiff may file written objections with 28 the Court. The document should be captioned “Objections to Magistrate Judge's Findings and 3 1 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 2 result in the waiver of the “right to challenge the magistrate's factual findings” on appeal. Wilkerson v. 3 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 4 1991)). 5 6 IT IS SO ORDERED. 7 Dated: 8 June 1, 2022 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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