Bealer v. Warden of Kern Valley State Prison

Filing 5

FINDINGS and RECOMMENDATIONS recommending that this action be Dismissed, without prejudice, for Plaintiff's failure to pay the filing fee or submit an appliction to proceed in forma pauperis in compliance with the Court's order re 1 Prisoner Civil Rights Complaint filed by Antwoine Bealer ; referred to Judge Drozd,signed by Magistrate Judge Stanley A. Boone on 12/1/17. Objections to F&R due 21-Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 Case No.: 1:17-cv-01277-SAB (PC) ANTWOINE BEALER, ORDER TO CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE Plaintiff, v. FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO COMPLY WITH COURT ORDER WARDEN OF KERN VALLEY STATE PRISON, TWENTY-ONE (21) DAY DEADLINE Defendant. 16 17 I. 18 BACKGROUND 19 Plaintiff Antwoine Bealer is a state prisoner proceeding pro se in a civil rights action 20 pursuant to 42 U.S.C. ' 1983. This action was opened by a court order in Antwoine Bealer v. 21 Kern Valley State Prison, Case No. 1:16-cv-00367-DAD-SKO-PC, issued on September 22, 22 2017. (ECF No. 2.) Specifically, the first amended complaint in that case, filed on March 7, 2017, 23 was stricken from the record in that matter, and ordered to be opened as a new case. This current 24 matter is the new case. 25 On September 27, 2017, Plaintiff was ordered to submit an application to proceed in 26 forma pauperis in this action pursuant to 28 U.S.C. § 1915, or pay the $400.00 filing fee. Plaintiff 27 was permitted forty-five (45) days to comply with that order. More than forty-five (45) days have 28 passed, and Plaintiff has not filed any application or paid the filing fee. 1 1 II. 2 DISCUSSION 3 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 4 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 either file an application to proceed in forma pauperis or pay the 19 filing fee within forty-five (45) days of the September 27, 2017 order. In the order, Plaintiff was 20 expressly warned that the failure to comply with the order would result in this action being 21 dismissed. (ECF No. 4. at p. 2) More than forty-five (45) days have passed, and Plaintiff has not 22 filed the application to proceed in forma pauperis, paid the filing fee in this action, or otherwise 23 responded to the Court’s order. The Court cannot effectively manage its docket if a party ceases 24 litigating the case. For these reason, the Court recommends that this action be dismissed. 25 III. 26 CONCLUSION AND RECOMMENDATION 27 28 For the reasons discussed above, the Clerk of the Court is HEREBY DIRECTED to randomly assign a Fresno District Judge to this action. 2 1 Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, without 2 prejudice, for Plaintiff’s failure to pay the filing fee or submit an application to proceed in forma 3 pauperis in compliance with the Court’s order. 4 These findings and recommendations are submitted to the district judge assigned to this 5 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 6 (21) days of service of this recommendation, Plaintiff may file written objections to this findings 7 and recommendations with the Court. Such a document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 10 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 11 Cir. 1991)). 12 13 14 IT IS SO ORDERED. Dated: December 1, 2017 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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