Opinion
Case No. CV 17-7296-AG (JPR)
08-31-2018
JACK JACKSON, Plaintiff, v. JOHN McMAHON et al., Defendants.
ORDER DISMISSING ACTION FOR FAILURE TO PAY FILING FEE AND FAILURE TO PROSECUTE
On October 10, 2017, the Court granted Plaintiff permission under 28 U.S.C. § 1915(b)(1) to file this civil-rights action without prepaying the $350 filing fee, but he was ordered to pay an initial partial filing fee of $44.96 within 30 days and monthly payments thereafter. At the time, Plaintiff had made average monthly deposits into his prison trust account of more than $100 for at least a year. He regularly used that money to purchase commissary items.
On January 16, 2018, Plaintiff filed a First Amended Complaint, and on February 9 the Magistrate Judge dismissed it with leave to amend because it largely failed to state a claim. She noted that Plaintiff had yet to pay his initial partial filing fee and that his lawsuit could be dismissed for that reason alone. She ordered him to either pay the fee or show cause why he should not have to.
On March 16, 2018, Plaintiff submitted a new IFP application, showing that the regular large monthly payments that had been being made into his prison trust account had stopped on October 17, 2017 — right around the time he would have received the Court's order requiring him to pay a filing fee. He offered no explanation for why those deposits had ceased. On April 5, 2018, Plaintiff filed a Second Amended Complaint. The Magistrate Judge dismissed that one, too, with leave to amend and again noted that Plaintiff had not paid the filing fee and that his lawsuit was subject to dismissal on that basis.
On July 6, 2018, Plaintiff asked for an extension of time to file his amended complaint, but he did not mention anything about the filing fee he owed. The Magistrate Judge granted his extension request, but she noted that Plaintiff appeared to be evading his responsibility to pay a filing fee, in part possibly by changing the way he received money to avoid having it show up in his prison trust account. She acknowledged that he might have an "innocent explanation for why the long-standing regular deposits into his trust account suddenly stopped when the Court ordered him to pay" the filing fee and ordered him to provide it to the Court in a written declaration no later than August 8, 2018, along with his amended complaint. She warned him that "[w]ithout a timely or satisfactory response from Plaintiff, this lawsuit will likely be dismissed." To date, Plaintiff has neither explained the cessation of deposits into his prison trust account or filed a third amended complaint.
Under the Prison Litigation Reform Act, all prisoners who are granted in forma pauperis status to file a lawsuit must nonetheless pay the full filing fee. § 1915(b)(1). For prisoners unable to pay at the time of filing, the statute provides for the assessment and, "when funds exist," the collection of an initial fee equal to 20 percent of the greater of the prisoner's average monthly account balance or monthly deposits for "the 6-month period immediately preceding the filing of the complaint or notice of appeal." Id. After payment of the initial fee, the prisoner must make monthly payments equal to 20 percent of the preceding month's income credited to the account, to be forwarded when the prisoner's account balance exceeds $10. § 1915(b)(2). Under the PLRA's "safety-valve" provision, a prisoner cannot "be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee." § 1915(b)(4).
Under the safety-valve provision, a court may not dismiss the lawsuit of a prisoner whose funds become depleted after the initial partial filing fee is assessed and who can no longer pay. Taylor v. Delatoore, 281 F.3d 844, 850-51 (9th Cir. 2002). In all other circumstances, however, a court may dismiss a prisoner's civil-rights action for failure to pay the initial partial filing fee (or indeed any portion of the full fee). See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (upholding dismissal of action for failure to pay initial partial filing fee when prisoner had enough money to buy "name brand toiletries" and snacks). Dismissal is also appropriate when a prisoner fails to respond to an OSC concerning his failure to pay the filing fee. See generally Dequon v. L.A. Cnty. Sheriff Dep't, No. CV 11-6136- RGK (SS), 2011 WL 6816627, at *1, *4 (C.D. Cal. Dec. 2, 2011), accepted by 2011 WL 6822101 (C.D. Cal. Dec. 22, 2011).
Plaintiff has had several opportunities to pay his filing fee or explain to the Court why he can't; not only has he not done so, he has not responded to the Court at all. And by not timely filing a third amended complaint, he appears to have expressed his desire to abandon this lawsuit.
Plaintiff's failure to respond to the Court's orders brings this case within the purview of Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988), which examined when it is appropriate to dismiss a lawsuit for failure to prosecute; see also Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962) ("The power to invoke [dismissal] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.").
In deciding whether to do so, a court must consider "(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. Unreasonable delay creates a rebuttable presumption of prejudice to the defendants that can be overcome only with an affirmative showing of just cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, the first, second, third, and fifth Carey factors militate in favor of dismissal. In particular, Plaintiff has offered no explanation for his failure to pay the fee for almost a year, since he filed this action in early October 2017. Thus, he has not rebutted the presumption of prejudice to Defendants. No less drastic sanction is available, as Plaintiff has ceased communicating with the Court. Although the fourth Carey factor weighs against dismissal - as it does in every case - together, the other factors outweigh the public's interest in disposing of the case on its merits.
As one court has noted, proceeding in forma pauperis is a privilege, not a right, and an applicant's "lack of candor and cavalier treatment" of his duty to explain his financial status to the court can result in sanctions, including dismissal. See Poslof v. Walton, No. 1:11-cv-01407-LJO (BAM), 2012 WL 691767, at *3 (E.D. Cal. Mar. 2, 2012), accepted by 2012 WL 968028 (E.D. Cal. Mar. 21, 2012); see also Tuck v. Pacer Serv. Ctr. U.S. Cts., No. 17-cv-1720-BAS (KSC), 2017 WL 4050356, at *3 (S.D. Cal. Sept. 12, 2017) (denying IFP and dismissing lawsuit because plaintiff did not explain why he could not pay filing fee from unspecified proceeds of settlements of numerous lawsuits he had filed).
It therefore is ORDERED that this action is dismissed under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing them for failure to prosecute and because Plaintiff has failed to pay the initial partial filing fee and has offered no explanation for not doing so.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: AUGUAST 31, 2018
/s/_________
ANDREW GUILFORD
U.S. DISTRICT JUDGE Presented by: /s/_________
Jean P. Rosenbluth
U.S. Magistrate Judge