1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TOM EMASEALU, Case No. 1:22-cv-01326-HBK (PC)

12 Plaintiff, ORDER DIRECTING CLERK TO ASSIGN ACTION TO DISTRICT JUDGE 13 v. 14 J. GOMEZ, K. HART, ARVIZA, and FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO MOORE, 15 OBEY COURT ORDER AND PROSECUTE1

Defendants. 16 14-DAY DEADLINE

17 18 Plaintiff Tom Emasealu is a former state prisoner proceeding pro se in this civil rights 19 action. For the reasons set forth below, the undersigned recommends the District Court dismiss 20 this action for Plaintiff’s failure to comply with a court order and prosecute this action. 21 BACKGROUND 22 On November 23, 2022, the Court granted Plaintiff’s Motion to Proceed in forma 23 pauperis under

. (See Doc. No. 7). At the time Plaintiff was granted IFP status 24 he was incarcerated at Federal Correctional Institution, Mendota. (Doc. No. 2). On April 2, 25 2023, Plaintiff filed a change of address indicating that he had been released from custody, which 26 the Court independently confirmed through CDCR’s Inmate Locator. (See Doc. No. 8). On July 27

1 This matter was referred to the undersigned pursuant to

(b)(1)(B) and Local Rule 302 1 17, 2023, the Court issued an order directing Plaintiff to either pay the remaining filing fee of 2 $350 or complete a new long form in forma pauperis (“IFP”) application because the fee 3 collection provision of

was no longer enforceable against Plaintiff. (Doc. No. 4 9). The July 17, 2023 Order gave Plaintiff until August 17, 2023 to comply. (Id. at 3). As of the 5 date of these Findings and Recommendation, Plaintiff has neither filed an updated IFP application 6 nor has he paid the filing fee, and the time to do so has expired.2 (See docket.) 7 APPLICABLE LAW AND ANALYSIS 8 A. Plaintiff’s Continuing Obligation to Pay the Filing Fee 9 All parties instituting any civil action, suit, or proceeding in a district court of the United 10 States, except an application for writ of habeas corpus, must pay a filing fee of $402. See 28

(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only 12 if he is granted leave to proceed IFP pursuant to

(a). See Andrews v. Cervantes, 13

(9th Cir. 2007); Rodriguez v. Cook,

(9th Cir. 1999). 14 The fee is not waived for prisoners, however. If granted leave to proceed IFP, a prisoner 15 nevertheless remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 16 Samuels,

, 84 (2016); Williams v. Paramo,

(9th Cir. 2015), 17 regardless of whether his action is dismissed for other reasons. See

(b)(1), (2); 18 Taylor v. Delatoore,

(9th Cir. 2002). 19 To qualify for IFP status, section 1915(a)(2) requires a prisoner to submit a “certified copy 20 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 21 immediately preceding the filing of the complaint.”

(a)(2); Andrews v. King, 22

(9th Cir. 2005). From the certified trust account statement, the Court 23 assesses an initial payment of twenty percent of (a) the average monthly deposits in the account 24 for the past six months, or (b) the average monthly balance in the account for the past six months, 25 whichever is greater, unless the prisoner has no assets. See

(b)(1), (4). The 26 institution having custody of the prisoner then collects subsequent payments, assessed at twenty 27 2 Because Plaintiff is no longer incarcerated, he is not entitled to the mailbox rule. Nonetheless, these Findings and 1 percent of the preceding month’s income, in any month in which his account exceeds ten dollars, 2 and forwards those payments to the Court until the entire filing fee is paid. See

§ 1915(b)(2); 3 Bruce, 577 U.S. at 84. 4 Plaintiff was incarcerated at Federal Correctional Institution, Mendota when he filed this 5 action. (See Doc. Nos. 2, 6). However, Plaintiff's release from custody renders 28 U.S.C. 6 § 1915(b)’s fee collection provisions unenforceable in this case. Because Plaintiff is no longer 7 incarcerated at FCI Mendota and is no longer in the custody of any correctional institution as his 8 Notice of Change of Address indicates, (see Doc No. 8), no inmate trust account exists from 9 which his filing fees may be garnished and forwarded to the court. See DeBlasio v. Gilmore, 315

(4th Cir. 2010) (noting that, after a prisoner is released, there is “no ‘prisoner’s 11 account’ from which to deduct . . . payments”). “Section 1915(b)(2) provides no method of 12 remitting payments other than by deduction from a prisoner’s account, and thus it does not shed 13 any light on how payments should be paid once that prisoner is released.”

14 The Ninth Circuit has yet to decide how a released prisoner who is obligated to “pay the 15 full amount of a filing fee” under

(b)(1) may proceed IFP after he has been 16 released—i.e., whether he must prepay the entire civil filing fee at once, whether he may proceed 17 pursuant to some other partial fee and/or court-ordered installment payment plan, or whether his 18 obligation to pay the fee is waived altogether or in part by virtue of his release. See Putzer v. 19 Attal,

, at *1 (D. Nev. Aug. 23, 2013) (noting the “unresolved issue within the 20 Ninth Circuit regarding the application of the Prison Litigation Reform Act (PLRA) pauper 21 application requirements in cases where the prisoner is released pendente lite, i.e., during the 22 litigation”); see also Turner v. San Diego Cnty.,

, at *2–3 (S.D. Cal. Nov. 7, 23 2014) (noting absence of Ninth Circuit authority addressing this issue); Patten v. Walker, 2015

, at *5 (E.D. Cal. June 9, 2015) (same). 25 However, other circuits and district courts in California have found the statutory language 26 of § 1915(b)(1) requires released prisoners to pay the amounts still due after their release if they 27 wish to continue to prosecute their action. Gay v. Tex. Dep’t of Corr.,

, 241–42 (5th 1 895, 897–99 (7th Cir. 1997); Townsend v. Rendon,

, at *2 (E.D. Cal. April 1, 2 2022) (directing released inmate to “either pay the filing fee in full or submit a complete[d] 3 application to proceed in forma pauperis by a non-prisoner”); Makoni v. Downs,

7210403, at *4 (S.D. Cal. Dec. 13, 2016) (denying released prisoner’s initial IFP motion and 5 requiring supplemental post-release IFP motion); Flynn v. Canlas,

, at *4 (S.D. 6 Cal. Dec. 10, 2015) (same); Adler v. Gonzalez,

, at *2 (E.D. Cal. July 1, 2015) 7 (requiring “updated IFP application” of released prisoner because court “ha[d] before it no 8 evidence that Plaintiff [remained] a pauper,” and the “[c]ircumstances that undoubtedly 9 contributed to his impoverishment, i.e., imprisonment, no longer exist”); Olivares v. Marshall, 59

(9th Cir. 1995) (remanding fee payments to district court in order to “review 11 [plaintiff's] present economic situation and fit a fee to the economic facts if [he was] still 12 interested in pursuing his claim”). 13 The Court advised Plaintiff that for this case to proceed further, he must pay $350.00 (the 14 total amount that remains due toward the $350.00 filing fee) in one lump sum no later than 15 August 17, 2023. (See Doc. No. 9). The Court further advised Plaintiff that if he is unable to pay 16 this amount in one lump sum, he was to file a renewed motion to proceed IFP providing a 17 complete picture of his current financial situation, including an explanation as to his ability to 18 provide basic necessities for himself. (Id. at 3). Because he has failed to either pay the remaining 19 fee balance of $350.00 or submit an updated IFP application, the undersigned recommends 20 Plaintiff’s case be dismissed without prejudice. See Townsend v. Rendon,

21 (E.D. Cal. July 13, 2023) (adopting F&R recommending released prisoner plaintiff’s IFP status be 22 revoked, and advising plaintiff that failure to pay remaining balance or submit updated IFP 23 application will result in dismissal); Adler,

, at *2 (same), report and 24 recommendation adopted,

(E.D. Cal. Aug. 6, 2015); Escobedo, 787 F.3d at 25 1228 (finding that a district court “will be free to dismiss the complaint” if the filing fee is not 26 paid or application to proceed in forma pauperis is not granted); see also In re Perroton,

889, 890 (9th Cir. 1992) (affirming dismissal of pro se litigant’s claim for failure to pay required 1 Plaintiff’s failure to comply with the Court’s July 17, 2023 Order. 2 B. Plaintiff’s Failure to Prosecute 3 Additionally, Federal Rule of Civil Procedure 41(b) permits the court to involuntarily 4 dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules 5 or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913

(9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with 7 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 8 any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . 9 . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 10 power to control their dockets” and, in exercising that power, may impose sanctions, including 11 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles,

(9th 12 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 13 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet,

, 1260-61 14 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 15 v. U.S. Postal Service,

(9th Cir. 1987) (dismissal for failure to comply with 16 a court order); Henderson v. Duncan,

(9th Cir. 1986) (dismissal for failure 17 to prosecute and to comply with local rules). 18 In determining whether to dismiss an action, the Court must consider several factors: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 20 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 21 cases on their merits; and (5) the availability of less drastic sanctions. Henderson,

1423; Carey v. King,

(9th Cir. 1988). 23 The undersigned considers each of the above-stated factors and concludes dismissal is 24 warranted in this case. The Court’s July 17, 2023 Order directed Plaintiff to file a new IFP 25 application within thirty (30) days of receipt of the Order. (Doc. No. 9). Alternatively, Plaintiff 26 was advised he could pay the filing fee. (Id.). Plaintiff failed to file a new IFP application and 27 failed to pay the filing fee. 1 interest, satisfying the first factor. Yourish v. California Amplifier,

(9th Cir. 2 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 3 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 4 filling judicial vacancies, which was exacerbated by the COVID-19 pandemic, operates under a 5 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 6 Emergency in the Eastern District of California. The Court’s time is better spent on its other 7 matters than needlessly consumed managing a case with a recalcitrant litigant. Because the Court 8 cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds 9 that both the first and second factors weigh in favor of dismissal. 10 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 11 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 12 factor. See Sibron v. New York,

(1968). Thus, the third factor, risk of prejudice 13 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 14 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W.,

, 15 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 16 action, weighing in favor of dismissal for a risk of prejudice to defendants. 17 Finally, the fourth factor usually weighs against dismissal because public policy favors 18 disposition on the merits. Pagtalunan v. Galaza,

(9th Cir. 2002). However, 19 “this factor lends little support to a party whose responsibility it is to move a case toward 20 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 21 here. In re Phenylpropanolamine (PPA) Products Liability Litigation,

(9th 22 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 23 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan,

644 (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice of 25 habeas petition where petitioner failed to timely respond to court order and noting “the weight of 26 the docket-managing factor depends upon the size and load of the docket, and those in the best 27 position to know what that is are our beleaguered trial judges.”). 1 | dismissal satisfies the “considerations of the alternatives” requirement. Ferdik,

; 2 | Malone,

; Henderson,

. The Court’s July 17, 2023, Order 3 | expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 4 | recommendation for dismissal of this action. (Doc. 9 at 3-4). Thus, Plaintiff had adequate 5 | warning that dismissal could result from his noncompliance. And the instant dismissal is a 6 | dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 7 | addressing the fifth factor. 8 After considering the factors set forth supra and binding case law, in the alternative, the 9 | undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 10 110. 11 Accordingly, it is ORDERED: 12 The Clerk of the Court randomly assign this case to a District Judge. 13 It is further RECOMMENDED: 14 This action be DISMISSED without prejudice. 15 NOTICE 16 These Findings and Recommendations will be submitted to the United States District 17 || Judge assigned to this case, pursuant to the provisions of

(b)(). Within 14 days 18 | of the date of service of these Findings and Recommendations, Plaintiff may file written 19 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 20 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 21 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 22 | 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 23 ** | Dated: _ August 30, 2023 Mihaw. Wh. foareh fackte 5 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

27 28