United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY COURT ORDER AND
FAILURE TO PROSECUTE (DOC. 3)
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Plaintiff
Christian David Ento (“Plaintiff”), a county jail
inmate proceeding pro se, initiated this civil action on
September 16, 2019. (Doc. 1.) Plaintiff also filed an
application to proceed in forma pauperis under 28 U.S.C.
§ 1915. (Doc. 2.) However, Plaintiff's application
was incomplete. Although Plaintiff filed the requisite
affidavit to proceed in forma pauperis, he failed to submit a
certified copy of his trust account statement (or
institutional equivalent) for the 6-month period immediately
preceding the filing of the complaint, obtained from the
appropriate correctional official. 28 U.S.C. §
1915(a)(2).
On
October 4, 2019, the Court directed Plaintiff to submit a
certified copy of his prison trust account statement that
covers the 6-month period immediately preceding the filing of
this action within forty-five days. (Doc. 3.) More than
forty-five days have passed, and Plaintiff has not yet
submitted a copy of his certified trust account statement or
otherwise responded to the Court's order.
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. 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
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); see also In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (standards governing
dismissal for failure to comply with court orders). These
factors guide a court in deciding what to do and are not
conditions that must be met in order for a court to take
action. Id. (citation omitted).
A civil
action may not proceed absent the submission of either the
filing fee or an application to proceed in forma pauperis. 28
U.S.C. §§ 1914, 1915. As Plaintiff's
applications to proceed in forma pauperis is not complete and
he has not otherwise responded to the Court's order, the
Court is left with no alternative but to dismiss this action.
This action has been pending since September 16, 2019, and
the matter can proceed no further without Plaintiff's
cooperation and compliance with the Court's order.
Moreover, this case cannot simply remain idle on the
Court's docket, unprosecuted, awaiting Plaintiff's
compliance.
Accordingly,
the Court HEREBY RECOMMENDS that this action be DISMISSED,
without prejudice, for Plaintiff's failure to comply with
the Court's order, failure to submit a copy of his
certified trust account statement and failure to prosecute
this action.
These
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, as required by 28
U.S.C. § 636(b)(1). Within fourteen (14)
days after being served with these findings and
recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that the failure
to file objections within the specified time may result in
the waiver of the “right to challenge the
magistrate's ...