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)

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