United States District Court, C.D. California, Eastern Division
MEMORANDUM AND ORDER DISMISSING ACTION WITHOUT
Michael W. Fitzgerald United States District Judge
a state prisoner proceeding pro se and in forma pauperis,
filed this complaint pursuant to 42 U.S.C § 1983. On
April 14, 2017, the Court issued an order directing plaintiff
to sign and file an authorization to disburse funds from his
prison trust account to pay the filing fee. [Dkt. 7].
Plaintiff was cautioned that his failure to file a signed
authorization form within the time allowed would result in
dismissal of this action. Plaintiff's authorization form
was due on May 12, 2017. As of the date of this order,
plaintiff has neither filed the authorization form nor
requested additional time within which to do so.
well-established that a district court may dismiss an action
for failure to prosecute, failure to follow court orders, or
failure to comply with the federal or local rules.
See Fed.R.Civ.P. 41(b); C. D. Cal. Local R. 41-1;
Link v. Wabash R.Co., 370 U.S. 626, 629-630 (1962);
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.) (per
curiam), cert. denied, 516 U.S. 838 (1995);
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.),
cert. denied, 506 U.S. 915 (1992); Carey v.
King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam).
determining whether to dismiss a case for failure to
prosecute or failure to comply with court orders or rules, a
district court should consider the following five factors:
(1) the public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the
availability of less drastic sanctions; and (5) the public
policy favoring disposition of cases on their merits. See
In re Phenylpropanolamine (PPA) Prod. Liability Litig.,
460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006)
(discussing and applying those factors); Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (same),
cert. denied, 538 U.S. 909 (2003); see,
e.g., Ferdik, 963 F.2d at 1260-61 (failure to
comply with orders); Carey, 856 F.2d at 1441
(failure to comply with local rule). Regardless of whether a
litigant's conduct is most properly characterized as a
failure to prosecute or as a failure to comply with court
orders or rules, the applicable standard is the same.
case, the first, second, and third factors favor dismissal.
See Pagtalunan, 291 F.3d at 642 (noting that the
first factor - the public's interest in the expeditious
resolution of litigation - “always favors
dismissal”) (quoting Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999));
Edwards v. Marin Park, Inc., 356 F.3d 1058,
1063-1066 (9th Cir. 2004) (discussing the second factor - the
court's need to manage its docket - and stating that when
a plaintiff does nothing, “resources continue to be
consumed by a case sitting idly on the court's
docket”); In re Eisen, 31 F.3d 1447, 1452-1453
(9th Cir. 1994) (with regard to the third factor - the risk
of prejudice - stating that in the absence of a showing to
the contrary, prejudice to defendants or respondents is
presumed from unreasonable delay). Further, plaintiff was
warned that his failure to file the signed authorization form
would lead to dismissal, so the fourth factor also supports
dismissal. See In re PPA Prod. Liability Litig., 460
F.3d at 1229 (“Warning that failure to obey a court
order will result in dismissal can itself meet the
‘consideration of alternatives'
fifth factor - the public policy favoring disposition of
cases on their merits - weighs against dismissal, as it
always does. Pagtalunan, 291 F.3d at 643 (citing
Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998)). Despite the policy favoring disposition on
the merits, however, it remains a litigant's
responsibility to comply with orders issued by the court and
“to move towards that disposition at a reasonable pace,
and to refrain from dilatory and evasive tactics.”
In re Eisen, 31 F.3d at 1452 (quoting Morris v.
Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991)). Plaintiff has not fulfilled that obligation. Further,
while the policy favoring disposition of cases on their
merits generally cuts against dismissal, “it does so
far less strongly when the relevant dismissal is without
prejudice, which, by definition, permits a re-filing within
the applicable statute-of-limitations period....”
McDermott v. Palo Verde Unified Sch. Dist, 638
Fed.Appx. 636, 638 (9th Cir. 2016).
of the relevant factors support the conclusion that dismissal
is warranted. See Valley Eng'rs Inc. v.
Elec.Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)
(noting that the five-factor test “amounts to a way for
a district judge to think about what to do, not a series of
conditions precedent” to dismissal), cert.
denied, 526 U.S. 1064 (1999); Hernandez, 138
F.3d at 399 (explaining that dismissal is appropriate when
four factors support dismissal or where three factors
“strongly” support dismissal).
under Rule 41(b) may be with or without prejudice.
See Fed.R.Civ.P. 41(b); Al-Torki v.
Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Under the
circumstances of this case, dismissal without prejudice is
foregoing reasons, this action is dismissed ...