Watkins v. United States of America

Filing 8

FINDINGS and RECOMMENDATIONS Recommending Dismissing Action for Failure to Comply with Court Order, signed by Magistrate Judge Stanley A. Boone on 9/13/17. Referred to Judge Drozd. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TERRANCE WATKINS, 13 14 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO COMPLY WITH COURT ORDER Plaintiff, 11 12 Case No. 1:17-cv-00909-DAD-SAB v. UNITED STATES OF AMERICA, OBJECTIONS DUE WITHIN THIRTY DAYS Defendant. 15 16 17 I. 18 BACKGROUND 19 Plaintiff Terrance Watkins, a federal prisoner, is appearing pro se in this action brought 20 pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1). Plaintiff filed this action on 21 July 10, 2017, but did not file an application to proceed without prepayment of fees or pay the 22 filing fee. On July 18, 2017, Plaintiff was ordered to either submit an application to proceed in 23 forma pauperis or pay the filing fee within forty-five days. (ECF No. 3.) 24 II. 25 DISCUSSION 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 28 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 1 1 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 2 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 3 2000). 4 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 5 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 6 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 7 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 8 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 9 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 10 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 11 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 12 of prosecution and failure to comply with local rules). 13 Plaintiff was ordered to either file an application to proceed in forma pauperis or pay the 14 filing fee within forty-five days of the July 18, 2017 order. In the order, Plaintiff was advised 15 that failure to comply with the order would result in this action being dismissed. (ECF No. 3. At 16 2) More than forty-five days have passed and Plaintiff has not filed the application to proceed in 17 forma pauperis, paid the filing fee in this action, or otherwise responded to the Court’s order. 18 Plaintiff has failed to comply with the order requiring him to pay the filing fee or demonstrate 19 that he is eligible to proceed without prepayment of the fee. For this reason, the Court 20 recommends that this action be dismissed. 21 III. 22 CONCLUSION AND RECOMMENDATION 23 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 24 prejudice, for Plaintiff’s failure to pay the filing fee or submit an application to proceed in forma 25 pauperis in compliance with the Court’s order. 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 28 days of service of this recommendation, Plaintiff may file written objections to this findings and 2 1 recommendations with the Court. Such a document should be captioned “Objections to 2 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 3 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 4 Plaintiff is advised that failure to file objections within the specified time may result in the 5 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 6 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. 9 Dated: September 13, 2017 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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