United States District Court, E.D. California
CAIN A. GONZALES, Plaintiff,
CITY OF CLOVIS, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR
FAILURE TO FILE APPLICATION TO PROCEED IN FORMA PAUPERIS OR
PAY FILING FEE, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO
PROSECUTE (ECF NOS. 3, 4, 5)
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
action was initiated on February 27, 2017 with the filing of
what appears to be a civil rights complaint brought pursuant
to 42 U.S.C. § 1983. (ECF No. 1.) That same date, an
application to proceed in forma pauperis was filed. (ECF No.
2.) On March 9, 2017, the application to proceed in forma
pauperis was denied without prejudice on the ground it was
completed and signed by a non-party and did not contain
information regarding Plaintiff's financial resources.
(ECF No. 3.) Also on March 9, 2017, Plaintiff's complaint
was stricken because it was not signed. (ECF No. 4.)
Plaintiff was ordered to pay the filing fee for this action
or submit an application to proceed in forma pauperis within
thirty days. He also was ordered to file a signed complaint
within thirty days. He failed to do either.
April 18, 2017, the Court ordered Plaintiff to show cause why
the action should not be dismissed for failure to file an
application to proceed in forma pauperis, failure to obey a
court order, and failure to prosecute. (ECF No. 5.) 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 comply with the Court's order
(ECF No. 3), dismissal of this action is appropriate. See
In re Phenylpropanolamine (PPA) Products Liability
Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local
Plaintiff has failed to comply with a Court order requiring
him to file a signed 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, with prejudice, 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
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, particularly
where it is unclear whether the named Plaintiff is aware of
this action or has brought it on his own behalf. 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
in this action, making monetary sanctions of little use.
on the foregoing, it is HEREBY RECOMMENDED THAT the action be
dismissed, without prejudice, for failure to file an
application to proceed in forma pauperis or pay the
applicable filing fee, failure to obey a court order, and
failure to prosecute.
findings and recommendation are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
(14) days after being served with the findings and
recommendation, any party may file written objections with
the Court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendation.” Any reply to
the objections shall be served and filed within fourteen (14)
days after service of the objections. The parties are advised
that failure to file objections within the specified time ...