(HC) Ward v. Evans, No. 1:2010cv00633 - Document 17 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this 4 Action be Dismissed, Without Prejudice, Pursuant to Local Rule 110 for Plaintiff's Failure to Comply with the Court's Order to Pay the Filing Fee signed by Magistrate Judge Sheila K. Oberto on 6/20/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 7/26/2010. (Sant Agata, S)
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(HC) Ward v. Evans Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CRAIG ALLEN WARD, 11 Petitioner, 12 v. 13 ACTING WARDEN M. C. EVANS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—0633-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR PETITIONER’S FAILURE TO FOLLOW A COURT ORDER AND PAY THE FILING FEE DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C. § 636(b) and Local Rules 302 and 304. 21 I. 22 The petition was transferred to this Court on April 12, 23 2010, from the District of Northern California, action no. CV 10- 24 662-JF-(PR) (doc. 9), with an application to proceed in forma 25 pauperis (doc. 5) pending at the time of the transfer. 26 Petitioner filed another motion to proceed in forma pauperis on 27 April 15, 2010 (doc. 11), which was denied by this Court by order 28 filed on May 5, 2010, because the documentation attached to Background 1 Dockets.Justia.com 1 Petitioner’s application demonstrated that Petitioner was able to 2 afford the costs of the action. (Doc. 15.) The order was served 3 by mail on Petitioner on May 5, 2010. It specifically stated: 4 5 6 7 8 9 Petitioner is ORDERED to pay the five filing fee within thirty (30) days of of this order. Failure to follow this in a recommendation that the Petition pursuant to Local Rule 11-110. dollar ($5.00) the date of service order may result be dismissed (Id.) Again, on May 24, 2010, the Court denied Petitioner’s renewed motion to proceed in forma pauperis, which had been filed 10 on May 17, 2010. 11 fee was due no later than June 8, 2010. 12 but Petitioner has not paid the $5.00 filing fee. Petitioner was reminded that the $5.00 filing The due date has passed, 13 II. 14 Local Rule 110 provides that “...failure of counsel or of a Failure to Pay the Filing Fee 15 party to comply with these Rules or with any order of the Court 16 may be grounds for imposition by the Court of any and all 17 sanctions... within the inherent power of the Court.” 18 courts have the inherent power to control their dockets and “in 19 the exercise of that power, they may impose sanctions including, 20 where appropriate... dismissal of a case.” 21 Auth., 782 F.2d 829, 831 (9th Cir. 1986). 22 action, with prejudice, based on a party’s failure to prosecute 23 an action, failure to obey a court order, or failure to comply 24 with local rules. 25 (9th Cir. 1995) (dismissal for noncompliance with local rule); 26 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 27 (dismissal for failure to comply with an order requiring 28 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 District Thompson v. Housing A court may dismiss an See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 2 1 (9th Cir. 1988) (dismissal for failure to comply with local rule 2 requiring pro se plaintiff to keep court apprised of address); 3 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 4 (dismissal for failure to comply with court order); Henderson v. 5 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 6 failure to lack of prosecution and failure to comply with local 7 rules). 8 In determining whether to dismiss an action for lack of 9 prosecution, failure to obey a court order, or failure to comply 10 with local rules, the Court must consider several factors: (1) 11 the public’s interest in expeditious resolution of litigation; 12 (2) the court’s need to manage its docket; (3) the risk of 13 prejudice to the defendants; (4) the public policy favoring 14 disposition of cases on their merits; and (5) the availability of 15 less drastic alternatives. 16 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 17 1260-61; Ghazali, 46 F.3d at 53. Thompson, 782 F.2d at 831; Henderson, 18 In this case, the Court finds that the public’s interest in 19 expeditiously resolving this litigation and the Court’s interest 20 in managing the docket weigh in favor of dismissal, as the case 21 has been pending since February 2010. 22 prejudice to Defendants, also weighs in favor of dismissal 23 because a presumption of injury arises from the occurrence of 24 unreasonable delay in prosecuting an action. 25 West, 542 F.2d 522, 524 (9th Cir. 1976). 26 the public policy favoring disposition of cases on their merits-- 27 is greatly outweighed by the factors in favor of dismissal 28 discussed herein. The third factor, risk of Anderson v. Air The fourth factor -- Finally, a court’s warning to a party that his 3 1 failure to obey the court’s order will result in dismissal 2 satisfies the “consideration of alternatives” requirement. 3 Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; 4 Henderson, 779 F.2d at 1424. 5 Plaintiff to pay the filing fee expressly stated that a failure 6 of Plaintiff to pay the filing fee would be considered to be a 7 failure to comply with an order of the Court pursuant to Local 8 Rule 110 that could result in dismissal. 9 received adequate warning that dismissal would result from his 10 The Court’s order requiring Thus, Plaintiff noncompliance with the Court’s order. 11 III. Recommendation 12 Accordingly, the Court hereby RECOMMENDS that this action be 13 DISMISSED, without prejudice, pursuant to Local Rule 110 for 14 Plaintiff’s failure to comply with the Court’s order to pay the 15 filing fee. 16 These findings and recommendations are submitted to the 17 United States District Court Judge assigned to the case, pursuant 18 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 19 the Local Rules of Practice for the United States District Court, 20 Eastern District of California. 21 being served with a copy, any party may file written objections 22 with the Court and serve a copy on all parties. Such a document 23 should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendations.” 25 and filed within fourteen (14) days (plus three (3) days if 26 served by mail) after service of the objections. 27 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 28 636 (b)(1)(C). Within thirty (30) days after Replies to the objections shall be served The Court will The parties are advised that failure to file 4 1 objections within the specified time may waive the right to 2 appeal the District Court’s order. 3 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 4 5 IT IS SO ORDERED. 6 Dated: ie14hj June 20, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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