Bryant v. Select Services Portfolio et al

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 2/21/2017 recommending that action be dismissed for Plaintiff's failure to pay filing fee 12 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY J. BRYANT, Case No. 1:16-cv-1642-LJO-SAB Plaintiff, 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR PLAINTIFF’S FAILURE TO PAY FILING FEE v. 13 14 SELECT SERVICES PORTFOLIO, et al., 15 Defendants. (ECF No. 12) FOURTEEN DAY DEADLINE 16 17 18 I. 19 BACKGROUND 20 Plaintiff Mary Bryant, proceeding pro se, filed this action on October 31, 2016. Along 21 with her complaint, Plaintiff filed an application to proceed in this action without prepayment of 22 fees. On December 20, 2016, a findings and recommendations issued finding that Plaintiff had 23 not demonstrated that she was entitled to proceed without prepayment of fees in this action. The 24 findings and recommendations was adopted on January 12, 2017; and Plaintiff was ordered to 25 pay the filing fee within thirty days. More than thirty days have passed; and Plaintiff has not 26 paid the filing fee or otherwise responded to the January 12, 2017 order. 27 / / / 28 / / / 1 1 II. 2 DISCUSSION 3 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 4 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 5 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 6 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 7 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 8 2000). 9 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 10 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 11 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 12 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 13 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 14 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 15 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 16 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 17 of prosecution and failure to comply with local rules). 18 Plaintiff was ordered to pay the filing fee within thirty days of the January 12, 2017 19 order. In the order, Plaintiff was advised that failure to comply with the order would result in 20 this action being dismissed. (ECF No. 12 at 2.) More than thirty days have passed and Plaintiff 21 has not paid the filing fee in this action, or otherwise responded to the Court’s order. Plaintiff 22 has failed to comply with the order requiring her to pay the filing fee. For this reason, the Court 23 recommends that this action be dismissed. 24 III. 25 CONCLUSION AND RECOMMENDATION 26 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 27 prejudice, for Plaintiff’s failure to pay the filing fee in compliance with the Court’s order. 28 These findings and recommendations are submitted to the district judge assigned to this 2 1 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 2 (14) days of service of this recommendation, Plaintiff may file written objections to these 3 findings and recommendations with the Court and serve a copy on all parties. Such a document 4 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 5 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 6 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time 7 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 8 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11 Dated: February 21, 2017 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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