Ward v. Evans

Filing 17

FINDINGS and RECOMMENDATIONS recommending that this 4 Action be Dismissed, Without Prejudice, Pursuant to Local Rule 110 for Plaintiff's Failure to Comply with the Court's Order to Pay the Filing Fee signed by Magistrate Judge Sheila K. Oberto on 6/20/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 7/26/2010. (Sant Agata, S)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 ACTING WARDEN M. C. EVANS, 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 302 and 304. I. Background CRAIG ALLEN WARD, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv--0633-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR PETITIONER'S FAILURE TO FOLLOW A COURT ORDER AND PAY THE FILING FEE DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS

The petition was transferred to this Court on April 12, 2010, from the District of Northern California, action no. CV 10662-JF-(PR) (doc. 9), with an application to proceed in forma pauperis (doc. 5) pending at the time of the transfer. Petitioner filed another motion to proceed in forma pauperis on April 15, 2010 (doc. 11), which was denied by this Court by order filed on May 5, 2010, because the documentation attached to 1

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Petitioner's application demonstrated that Petitioner was able to afford the costs of the action. (Doc. 15.) The order was served by mail on Petitioner on May 5, 2010. It specifically stated: Petitioner is ORDERED to pay the five filing fee within thirty (30) days of of this order. Failure to follow this in a recommendation that the Petition pursuant to Local Rule 11-110. (Id.) Again, on May 24, 2010, the Court denied Petitioner's renewed motion to proceed in forma pauperis, which had been filed on May 17, 2010. Petitioner was reminded that the $5.00 filing The due date has passed, dollar ($5.00) the date of service order may result be dismissed

fee was due no later than June 8, 2010.

but Petitioner has not paid the $5.00 filing fee. II. Failure to Pay the Filing Fee

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... dismissal of a case." Auth., 782 F.2d 829, 831 (9th Cir. 1986). Thompson v. Housing 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); Carey v. King, 856 F.2d 1439, 1440-41 2

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(9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiff 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 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). In 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. In this case, the Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal, as the case has been pending since February 2010. The third factor, risk of

prejudice to Defendants, also weighs in favor of dismissal because a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. West, 542 F.2d 522, 524 (9th Cir. 1976). Anderson v. Air

The fourth factor --

the public policy favoring disposition of cases on their merits-is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court's warning to a party that his 3

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failure to obey the court's order will result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's order requiring

Plaintiff to pay the filing fee expressly stated that a failure of Plaintiff to pay the filing fee would be considered to be a failure to comply with an order of the Court pursuant to Local Rule 110 that could result in dismissal. Thus, Plaintiff

received adequate warning that dismissal would result from his noncompliance with the Court's order. III. Recommendation Accordingly, the Court hereby RECOMMENDS that this action be DISMISSED, without prejudice, pursuant to Local Rule 110 for Plaintiff's failure to comply with the Court's order to pay the filing fee. These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after

being served with a copy, 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 Recommendations." Replies to the objections shall be served

and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will

then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 4

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objections within the specified time may waive the right to appeal the District Court's order. 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d

IT IS SO ORDERED. Dated: ie14hj June 20, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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