Flores v. Miller et al

Filing 8

FINDINGS And RECOMMENDATIONS Regarding Dismissal Of Action For Failure To Comply With Court Order (ECF No. 7 ), Twenty-One Day Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 2/3/2014. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 2/26/2014. (Fahrney, E)

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EASTERN DISTRICT OF CALIFORNIA

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SANTOS RENE FLORES,

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Plaintiff,
v.
R. L. MILLER, et al.,

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Defendants.

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1:13-cv-01381-AWI- BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO COMPLY WITH COURT
ORDER
(ECF No. 7)
TWENTY-ONE DAY DEADLINE

Plaintiff Santos Rene Flores (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 29, 2013,

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but failed to pay the $400.00 filing fee or to submit an application to proceed in forma pauperis.

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On August 30, 2013, the Court ordered Plaintiff to pay the filing fee or to submit an

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application to proceed in forma pauperis within forty-five days. (ECF No. 3.) On September 18,

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2013, Plaintiff filed an unsigned application to proceed in forma pauperis. (ECF No. 6.)

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Thereafter, on September 20, 2013, the Court ordered Plaintiff to submit a signed application to

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proceed in forma pauperis or pay the $400.000 filing fee within thirty (30) days of the date of

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service of the order. (ECF No. 7.) More than thirty days have passed since service of the

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Court’s order and Plaintiff has not paid the filing fee or submitted a signed application to proceed

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in forma pauperis. Based on Plaintiff’s failure to comply, it is recommended that this action be

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dismissed.

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Local Rule 110 provides that a “failure . . . of a party to comply with these Rules or with
any order of the Court may be grounds for the imposition by the Court of any and all sanctions . .
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. within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th

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Cir. 1987) (dismissal for failure to comply with court order).

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In determining whether to dismiss an action for lack of prosecution, the Court must

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consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d

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1439 (9th Cir. 1988).

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The Court finds that the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. Plaintiff has made no

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attempt to resolve the fee issue or to make contact with the Court since September 2013. The

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Court cannot hold this case in abeyance indefinitely awaiting compliance by Plaintiff. The third

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factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v.

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Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

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disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal

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discussed herein. Finally, the Court’s warning to a party that failure to obey the court’s order

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will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963

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F.2d at 1262; Malone, 833 F.2d at 132-133; Henderson, 779 F.2d at 1424. The Court’s order

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issued on September 20, 2013, expressly stated “Failure to comply with this order will result in

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dismissal of this action.” (ECF No. 7.) Thus, Plaintiff had adequate warning that dismissal

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could result from his noncompliance with the Court’s order.

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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED without

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prejudice based on Plaintiff’s failure to comply with the Court’s order to pay the filing fee or to

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submit a signed application to proceed in forma pauperis.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge’s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 3, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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