Driver v. U.S. Special Master et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, for Plaintiff's Failure to Comply With the Court's Order of May 2, 2017, and Failure to Pay the Filing Fee re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 6/30/2017. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, 12 13 14 15 16 Case No. 1:17-cv-00202-DAD-BAM (PC) Plaintiff, v. U.S. SPECIAL MASTER, et al., Defendants. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CASE WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE AND FAILURE TO OBEY COURT ORDER (ECF No. 9) FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Billy Driver (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on February 13, 2017. (ECF 20 No. 1.) On the same day, Plaintiff filed an application to proceed in forma pauperis under 28 21 U.S.C. § 1915. (ECF No. 2.) On February 22, 2017, the Court issued findings and 22 recommendations recommending that Plaintiff’s application to proceed in forma pauperis be 23 denied and that he be required to pay the $400.00 filing fee in full to proceed with this action. 24 (ECF No. 7.) Plaintiff timely filed objections on March 9, 2017. (ECF No. 8.) 25 On May 2, 2017, the assigned District Judge issued an order adopting the findings and 26 recommendations over Plaintiff’s objections, and ordering Plaintiff to pay the $400.00 filing fee 27 in full within forty-five (45) days. (ECF No. 9). In that order, Plaintiff was warned that if he 28 failed to pay the filing fee within the specified time, the action would be dismissed. (Id.) The 1 1 relevant time period for Plaintiff to respond to the Court’s order has expired, and Plaintiff has not 2 yet paid the filing fee. District courts have the inherent power to control their dockets and “[i]n the exercise of 3 4 that power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v. 5 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 6 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure 7 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 8 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th 9 Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 10 Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to 11 comply with court order). 12 In determining whether to dismiss an action, the Court must consider several factors: 13 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 14 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 16 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988); see also In 17 re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) 18 (standards governing dismissal for failure to comply with court orders). These factors guide a 19 court in deciding what to do and are not conditions that must be met in order for a court to take 20 action. Id. (citation omitted). 21 A civil action may not proceed absent the submission of either the filing fee or an 22 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiff’s application to 23 proceed in forma pauperis has been denied, he has failed to pay the filing fee, and has not 24 otherwise responded to the Court’s order, the Court is left with no alternative but to dismiss this 25 action. This action has been pending since February 2017, and can proceed no further without 26 Plaintiff’s cooperation and compliance with the Court’s order. Moreover, the matter cannot 27 simply remain idle on the Court’s docket, unprosecuted, awaiting Plaintiff’s compliance. 28 /// 2 1 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, 2 without prejudice, for Plaintiff’s failure to comply with the Court’s order of May 2, 2017, (ECF 3 No. 9), and failure to pay the filing fee. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 6 being served with these findings and recommendations, Plaintiff may file written objections with 7 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Plaintiff is advised that the failure to file objections within the specified 9 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 10 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 11 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara June 30, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?