United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
ACTION FOR FAILURE TO COMPLY AND FAILURE TO PROSECUTE AND
DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
(ECF NO. 3) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Edward Horne (“Plaintiff”), proceeding pro
se, filed this civil rights action pursuant to 42 U.S.C.
§ 1983. Along with Plaintiff's complaint he filed a
motion to proceed in this action in forma pauperis.
On September 5, 2019, an order issued striking
Plaintiff's complaint because it was not signed and
requiring Plaintiff to file a long form application to
proceed without prepayment of fees. Plaintiff's signed
complaint and long form application were due within thirty
days. On September 17, 2019, Plaintiff filed a long form
application to proceed without prepayment of fees in this
action. However, more than thirty days have passed and
Plaintiff has not filed a signed complaint in compliance with
the September 5, 2019 order.
Rule 110 provides that “[f]ailure of counsel or of a
party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and
all sanctions . . . within the inherent power of the
Court.” The Court has the inherent power to control its
docket and may, in the exercise of that power, impose
sanctions where appropriate, including dismissal of the
action. Bautista v. Los Angeles County, 216 F.3d
837, 841 (9th Cir. 2000); Ready Transp., Inc. v. AAR
Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010).
may dismiss an action based on a party's failure to
prosecute an action, failure to obey a court order, or
failure to comply with local rules. See, e.g. Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
noncompliance with local rule); Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure
to comply with an order to file an amended complaint);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
1988) (dismissal for failure to comply with local rule
requiring pro se plaintiffs to keep court apprised of
address); Malone v. United States Postal Serv., 833
F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
comply with court order); Henderson v. Duncan, 779
F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of
prosecution and failure to comply with local rules). Where a
plaintiff fails to file an amended complaint after being
provided with leave to amend to cure the failure to state a
claim, a district court may dismiss the entire action.
Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.
determining whether to dismiss an action for failure to
comply with a pretrial order, the Court must weigh “(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 public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.” In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006); Thompson v. Hous.
Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th
Cir. 1986). These factors guide a court in deciding what to
do, and are not conditions that must be met in order for a
court to take action. In re Phenylpropanolamine (PPA)
Products Liability Litigation, 460 F.3d at 1226.
instance the public's interest in expeditious resolution
of the litigation and the Court's need to manage its
docket weigh in favor of dismissal. In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d at 1226. Plaintiff was provided with the legal
standards that appeared to apply to his claims and was
ordered to file a signed complaint within thirty days of
September 5, 2019. Although it is clear that Plaintiff
received the order as he filed the motion to proceed in
forma pauperis, Plaintiff has neither filed a signed
complaint nor requested an extension of time to do so.
Plaintiff's failure to comply with the orders of the
Court hinders the Court's ability to move this action
towards disposition, and indicates that Plaintiff does not
intend to diligently litigate this action.
it appears that Plaintiff does not intend to litigate this
action diligently there arises a rebuttable presumption of
prejudice to the defendants in this action. In re
Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). The risk
of prejudice to the defendants also weighs in favor of
public policy in favor of deciding cases on their merits is
greatly outweighed by the factors in favor of dismissal. It
is Plaintiff's responsibility to move this action
forward. This action can proceed no further without
Plaintiff's filing a complaint and compliance with the
order at issue, and the action cannot simply remain idle on
the Court's docket, unprosecuted. In this instance, the
fourth factor does not outweigh Plaintiff's failure to
comply with the Court's orders.
a court's warning to a party that their failure to obey
the court's order will result in dismissal satisfies the
“consideration of alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 at
132-33; Henderson, 779 F.2d at 1424. The Court's
September 5, 2019 order requiring Plaintiff to file a signed
complaint expressly stated: “If Plaintiff fails to
comply with this order, the Court shall recommend that this
action be dismissed for failure to pay the filing fee and
failure to comply with a court order.” (ECF No. 3 at
4.) Thus, Plaintiff had adequate warning that dismissal of
this action would result from his noncompliance with the
Court's order and his failure to file a signed complaint.
Plaintiff seeks to proceed in forma pauperis in this
action. District courts “may authorize the commencement
. . . of any suit, action or proceeding, civil or criminal .
. . without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement of
all assets such [person] possess that the person is unable to
pay such fees or give security therefor.” 28 U.S.C.
§ 1915(a)(1). If a plaintiff proceeds through §
1915, a district court “shall dismiss the case at any
time if the court determines that . . . the action . . .
fails to state a claim on which relief may be granted . . .
.” 28 U.S.C. § 1915(e)(2)(B)(ii). For purposes of
§ 1915(e)(2)(B)(ii), the same standard for a Rule
12(b)(6) motion is utilized - the complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face.” Rosati v.
Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). “A
district court may deny leave to proceed in forma pauperis at
the outset if it appears from the face of the proposed
complaint that the action is frivolous or without
merit.” Minetti v. Port of Seattle, 152 F.3d
1113, 1115 (9th Cir. 1998); Tripati v. First Nat'l
Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
However, the “denial of leave to proceed in forma
pauperis is an abuse of discretion unless the district court
first provides a plaintiff leave to amend the complaint or
finds that amendment would be futile.” Rodriguez v.
Steck, 795 F.3d 1187, 1188 (9th Cir. 2015); see
Tripati, 821 F.2d at 1370. If a court denies a motion to
proceed in forma pauperis because the complaint is frivolous
and cannot be cured by amendment, then the denial of the
motion acts as a dismissal under 28 U.S.C. § 1915(e).
Rodriguez, 795 F.3d at 1188.
instance, Plaintiff has not filed a signed complaint and has
therefore failed to state a claim in this action. Plaintiff
was ordered to file a signed complaint and has not done so.
Therefore, the Court recommends that Plaintiff's
application to proceed in forma pauperis be denied.
it is HEREBY RECOMMENDED that:
1. This action be DISMISSED for Plaintiff's failure to
comply with the September 5, 2019 order and failure to
2. Plaintiff's application to proceed in forma
pauperis be DENIED.
findings and recommendations is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. §
636(b)(1)(B) and this Court's Local Rule 304. Within
fourteen (14) days of service of this
recommendation, Plaintiff may file written objections to this
findings and recommendations with the court. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” The district
judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
Plaintiff is advised that failure to file objections within
the specified ...