United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR
FAILURE TO PAY FILING FEE OR FILE APPLICATION TO PROCEED IN
FORMA PAUPERIS, FAILURE TO OBEY COURT ORDER, AND FAILURE TO
PROSECUTE (ECF NOS. 11 AND 12) FOURTEEN (14) DAY OBJECTION
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state hospital detainee proceeding pro se in a civil
rights action filed pursuant to 42 U.S.C. § 1983. On
March 7, 2016, he filed an application to proceed in forma
pauperis by a prisoner. (ECF No. 8.) On April 25, 2016, the
Court ordered Plaintiff to file a non-prisoner application to
proceed in forma pauperis, or to pay the $400 filing fee
within thirty days. (ECF No. 11.) Plaintiff has not done so.
on May 2, 2016, the Court screened Plaintiff’s
complaint and dismissed it with leave to amend on the ground
his claims were barred by Heck v. Humphrey, 512 U.S.
477, 489 (1994). Plaintiff failed to file an amended
complaint or notice of voluntary dismissal as ordered by the
on these failures, on June 10, 2013, the Court ordered
Plaintiff to show cause why the action should not be
dismissed for failure to pay the filing fee or application to
proceed in forma pauperis, failure to obey a court order, and
failure to prosecute. (ECF No. 13.) Plaintiff did not respond
and the time for doing so has passed.
action may not proceed absent the submission of either the
filing fee or a completed application to proceed in forma
pauperis. 28 U.S.C. §§ 1914, 1915. Based on
Plaintiff’s failure to submit the appropriate
application to proceed in forma pauperis or pay the
applicable filing fee, dismissal of this action is
appropriate. See In re Phenylpropanolamine (PPA) Products
Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.
2006); Local Rule 110.
also is appropriate due to Plaintiff’s failure to
timely file an amended complaint. Local Rule 110 provides
that “failure 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.” District courts have
the inherent power to control their dockets and “in the
exercise of that power, they may impose sanctions including,
where appropriate, default or dismissal.” Thompson
v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
court may dismiss an action based on a party’s failure
to prosecute, 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 a 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. U.S. Postal Service, 833 F.2d
128, 130 (9th Cir. 1987) (dismissal for failure to comply
with a 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).
determining whether to dismiss an action for lack of
prosecution, failure to obey a court order, or failure to
comply with local rules, 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 alternatives. Thompson, 782 F.2d at 831; Henderson,
779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963
F.2d at 1260-61; Ghazali, 46 F.3d at 53.
instant case, the public’s interest in expeditiously
resolving this litigation and the Court’s interest in
managing its docket weigh in favor of dismissal. The third
factor, risk of prejudice to Defendants, also weighs in favor
of dismissal, since a presumption of injury arises from the
occurrence of unreasonable delay in prosecuting this action.
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
1976). The fourth factor --public policy favoring disposition
of cases on their merits -- is greatly outweighed by the
factors in favor of dismissal discussed herein. Finally, as
for the availability of lesser sanctions, at this stage in
the proceedings there is little available which would
constitute a satisfactory lesser sanction while preserving
scarce Court resources. Plaintiff has not paid the filing fee
for this action and is likely unable to pay, making monetary
sanctions of little use.
it is HEREBY RECOMMENDED THAT this action be dismissed
without prejudice for failure to pay the filing fee or file a
completed application to proceed in forma pauperis, failure
to obey a court order, and failure to prosecute.
findings and recommendations 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)(1). Within
fourteen (14) days after being served with the findings and
recommendations, the parties may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge’s Findings and
Recommendations.” A party may respond to another
party’s objections by filing a response within fourteen
(14) days after being served with a copy of that
party’s objections. The parties are advised that
failure to file objections within the specified ...