(PC) Jesse G. Romero v. Wittman, No. 1:2012cv01553 - Document 7 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action, without Prejudice, for Failure to Either Pay Filing Fee or Submit an Application to Proceed in Forma Pauperis and for Failure to Prosecute, signed by Magistrate Judge Gerald B. Cohn on 11/27/12. Referred to Judge Ishii; 15-Day Deadline. (Verduzco, M)

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(PC) Jesse G. Romero v. Wittman Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JESSE GONZALES ROMERO, 10 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EITHER PAY FILING FEE OR SUBMIT AN APPLICATION TO PROCEED IN FORMA PAUPERIS AND FOR FAILURE TO PROSECUTE Defendant. Docs. 3, 5 v. 12 13 14 15 CASE NO. 1:12-cv-01553-AWI-GBC (PC) BILL WITTMAN, / OBJECTIONS DUE WITHIN FIFTEEN DAYS 16 17 18 19 Findings and Recommendations On January 26, 2012, Plaintiff Jesse Gonzales Romero (“Plaintiff”), a former state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. 20 On September 24, 2012, the Court ordered Plaintiff to either consent to or decline Magistrate 21 Judge jurisdiction within thirty days. Doc. 3. On October 10, 2012, the Court ordered Plaintiff to 22 submit an application to proceed in forma pauperis by a non-prisoner or pay the filing fee within 23 thirty days. Doc. 5. To date, Plaintiff has failed to pay the $350.00 filing fee in full, submit an 24 application to proceed in forma pauperis, or respond to the Court’s orders. 25 The Court has the inherent power to control its docket and may, in the exercise of that power, 26 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles 27 County, 216 F.3d 837, 841 (9th Cir. 2000). “In determining whether to dismiss an action for lack of 28 prosecution, the district court is required to consider several factors: ‘(1) the public’s interest in Page 1 of 2 Dockets.Justia.com 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 2 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 3 (5) the availability of less drastic sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) 4 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court 5 in deciding what to do, and are not conditions that must be met in order for a court to take action. 6 In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 7 2006). 8 A civil action may not proceed absent the submission of either the filing fee or an application 9 to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Because Plaintiff has not submitted an 10 application to proceed in forma pauperis, paid the filing fee, or responded to the Court’s order to do 11 so, dismissal of this action is appropriate. In re Phenylpropanolamine (PPA) Products Liability 12 Litigation, 460 F.3d at 1226; Local Rule 110. 13 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 14 prejudice, for failure to pay the filing fee or submit a completed application to proceed in forma 15 pauperis and for failure to prosecute. 16 These Findings and Recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days 18 after being served with these Findings and Recommendations, Plaintiff may file written objections 19 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 21 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th 22 Cir. 1991). 23 24 IT IS SO ORDERED. 25 26 Dated: 7j8cce November 27, 2012 UNITED STATES MAGISTRATE JUDGE 27 28 Page 2 of 2

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