(PC) Bealer v. Kern Valley State Prison

Filing 8

ORDER Directing Clerk of Court to Randomly Assign a Fresno District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Prosecute, and Failure to Pay Filing Fee, signed by Magistrate Judge Stanley A. Boone on 11/13/18. This Case is Assigned to District Judge Dale A. Drozd and Magistrate Judge Stanley A. Boone. The New Case No. is: 1:18-cv-01170-DAD-SAB. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTWOINE BEALER,

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Plaintiff,

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v.
KERN VALLEY STATE PRISON,

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Defendant.

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Case No.: 1:18-cv-01170-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A FRESNO DISTRICT
JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION FOR FAILURE TO COMPLY
WITH COURT ORDER, FAILURE TO
PROSECUTE, AND FAILURE TO PAY FILING
FEE
FOURTEEN-DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff Antwoine Bealer is proceeding pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. Plaintiff initiated the instant action on May 14, 2018, and the complaint was entered on August

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29, 2018. (ECF No. 1.)
On August 30, 2018, the Court ordered Plaintiff to submit an application to proceed in forma

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pauperis or pay the $400.00 filing fee within forty-five days. (ECF No. 3.)

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On October 1, 2018, Plaintiff submitted a motion to proceed in forma pauperis, along with

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certified copy of his trust account statement. (ECF No. 5.) However, Plaintiff’s application did not

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include Plaintiff’s original signature. Each document submitted for filing must include the original

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signature of the filing party. Local Rule 131; Fed. R. Civ. P. 11(a).

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On October 3, 2018, the Court informed Plaintiff of the deficiencies in his application, and again

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ordered him to submit an application to proceed in forma pauperis in this action pursuant to 28 U.S.C.

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§ 1915, or pay the $400.00 filing fee. (ECF No. 7.) Plaintiff was permitted thirty days to comply with

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that order.

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More than thirty days have passed, and Plaintiff has not filed any application, paid the filing fee,
or otherwise responded to the Court’s second order.

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II.

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DISCUSSION

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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or

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with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” The Court has the inherent power to control its docket and

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may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the

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action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000).

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A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey

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a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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(9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v.

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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring

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pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128,

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130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d

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1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).

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Plaintiff was ordered to either file an application to proceed in forma pauperis or pay the filing

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fee within thirty days of the Court’s October 3, 2018 order. In the order, Plaintiff was expressly warned

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that the failure to comply with the order would result in this action being dismissed. (ECF No. 7 at 2.)

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The deadline has passed, and Plaintiff has not filed the application to proceed in forma pauperis, paid

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the filing fee in this action, or otherwise responded to the Court’s order. The Court cannot effectively

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manage its docket if a party ceases litigating the case. For these reasons, the Court recommends that

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this action be dismissed.
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III.

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CONCLUSION AND RECOMMENDATION
Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a Fresno

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District Judge to this action.

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Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, without

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prejudice, for Plaintiff’s failure to prosecute, and failure to pay the filing fee or submit an application to

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proceed in forma pauperis in compliance with the Court’s order.

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These findings and recommendations are submitted to the district judge assigned to this action,

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pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days of

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service of this recommendation, Plaintiff may file written objections to this findings and

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recommendations with the Court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839

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(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 13, 2018
UNITED STATES MAGISTRATE JUDGE

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