(PC) Neice v. Adult Probation Dept. PRCS Administrator & Staff

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT DEAN NEICE,
Plaintiff,
v.
ADULT PROBATION DEPT. PRCS
ADMINISTRATOR & STAFF,
Defendant.
Case No. 1:25-cv-01611-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITHOUT PREJUDICE
FOR FAILURE TO OBEY COURT ORDER
AND FOR FAILURE TO PROSECUTE
(ECF No. 4)
I. Background
Plaintiff Robert Dean Neice (“Plaintiff”) is a county jail inmate proceeding pro se in this
civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on November 21,
2025, together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.)
On November 25, 2025, the Court determined that Plaintiff’s application to proceed in
forma pauperis was incomplete because Plaintiff failed to submit a certified copy of his trust
account statement and did not have an authorized officer from his institution of incarceration
complete the certificate portion of the form. (ECF No. 4.) The Court therefore ordered Plaintiff to
file a certified copy of his inmate trust account statement for the past six months or, in the
alternative, pay the $405.00 filing fee for this action within thirty days of service. (Id. at 1.) The
Court warned Plaintiff that the failure to comply with the order would result in dismissal of this
action without prejudice. (Id. at 2.) In lieu of filing a copy of his trust account statement or
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payment of the filing fee, Plaintiff filed a first amended complaint on December 29, 2025. (ECF
No. 6.) There is no indication that Plaintiff intends to file a copy of his inmate trust account
statement or pay the filing fee, and the deadline in which to do so has expired.
II. Failure to Prosecute and Failure to Obey a Court Order
A. Legal Standard
Local Rule 110 provides that “[f]ailure . . . 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.” District courts have the inherent power to control their
dockets and “[i]n the exercise of that power they may impose sanctions including, where
appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
court may dismiss an action, with prejudice, 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 requiring
amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
(dismissal for failure to comply with court order).
In determining whether to dismiss an action, the Court must consider several 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. Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
B. Discussion
Here, Plaintiff’s trust account statement or payment of the filing fee is overdue, and he has
failed to comply the with the Court’s order. The Court cannot effectively manage its docket if
Plaintiff ceases to prosecute this action as directed. Thus, the Court finds that both the first and
second factors weigh in favor of dismissal.
The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d
639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
responsibility it is to move a case toward disposition on the merits but whose conduct impedes
progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products
Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
Finally, the Court’s warning to a party that failure to obey the court’s order will result in
dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s order issued on November
25, 2025, warned Plaintiff that his failure to file a certified copy of his trust account statement or
to pay the filing fee would result in dismissal of this action. (ECF No. 4 at 2.) Thus, Plaintiff had
adequate warning that dismissal could result from his noncompliance.
Additionally, at this stage in the proceedings there is little available to the Court that
would constitute a satisfactory lesser sanction while protecting the Court from further
unnecessary expenditure of its scarce resources. As Plaintiff has applied to proceed in forma
pauperis and has failed to pay the filing fee, monetary sanctions likely would be of little use.
Further, the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has
ceased litigating his case as directed by the Court.
III. Conclusion and Recommendation
Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a
District Judge to this action.
Further, the Court finds that dismissal is the appropriate sanction and HEREBY
RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a court order
and for Plaintiff’s failure to prosecute this action.
These Findings and Recommendation will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
(14) days after being served with these Findings and Recommendation, Plaintiff may file written
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or
include exhibits. Exhibits may be referenced by document and page number if already in
the record before the Court. Any pages filed in excess of the 15-page limit may not be
considered. Plaintiff is advised that failure to file objections within the specified time may result
in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991)).
IT IS SO ORDERED.
Dated: January 6, 2026 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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