Dukes v. United States

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meloniece Dukes, 8 Plaintiff CV-25-1124-PHX-JFM -vs- 9 United States of America, Defendant. Report & Recommendation 11 This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.

16 Plaintiff commenced this civil rights action on April 4, 2025 by filing a pro se Complaint (Doc. 1) and Application to Proceed In Forma Pauperis (Doc. 2). On May 9, 2025, the Court denied without prejudice Plaintiff’s Application to Proceed In Forma Pauperis, with leave to file an amended application, on the basis that the application suggested available assets, and was inconsistent with IFP Applications filed by Plaintiff in other cases which suggested available assets or income.1 Plaintiff was given 14 days to file an amended application with additional explanation. (Order 5/9/25, Doc. 10.)

23 Plaintiff then filed an Amended IFP Application (Doc. 11) which failed to address the inconsistencies with prior applications and indicating unexplained changes from the original IFP application. Consequently, the Amended IFP Application was denied without 1 Local Rule of Civil Procedure 72.2(a)(4) directs that absent consent to magistrate jurisdiction, a magistrate judge may not deny a request for in forma pauperis status made prejudice, and Plaintiff was given 14 days to file an amended IFP application addressing the issues, or to pay the filing fees. (Order 5/14/25, Doc. 12.)

3 That deadline expired on May 28, 2025. No amended, or renewed application to proceed in forma pauperis has been filed. Nor has Plaintiff paid the filing fees, or otherwise responded or taken action to prosecute this case.

6 Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Plaintiff's failure to timely file an amended application constitutes a failure to prosecute.

9 Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. at 633.

17 In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh 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 public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

26 Here, the first (expeditious resolution), second (docket management), and third (prejudice) factors favor dismissal of this case. Plaintiff's failure to pursue an IFP The fourth factor (merits), as always, weighs against dismissal. The fifth factor (alternatives) requires the court to consider whether a less drastic alternative is available.

3 Here, monetary sanctions are unlikely to be effective, assuming Plaintiff’s assertions of impecunity are correct. Plaintiff’s complete failure to respond suggests simple abandonment of the case, and that other administrative or evidentiary sanctions will be ineffective.

7 The undersigned finds that only one less drastic sanction is realistically available.

8 Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant case, the undersigned finds that a dismissal with prejudice would be unnecessarily harsh. The Complaint and this action shou8ld therefore be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

13 IT IS THEREFORE RECOMMENDED this action be DISMISSED WITHOUT PREJUDICE.

EFFECT OF RECOMMENDATION This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered 1 1146-47 (9th Cir. 2007).

2 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that || “[uJnless otherwise permitted by the Court, an objection to a Report and Recommendation || issued by a Magistrate Judge shall not exceed ten (10) pages.” _ A LZ zeae 6 Dated: June 2, 2025 James F. Metcalf 25-1124" RR 2506 02 re Dismiss re Feesdocs United States Magistrate Judge