Gonzalez v. Selma Police Department et al, No. 1:2018cv00602 - Document 9 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing 1 Action for Failure to Pay Filing Fee; Objections Due within Twenty Days signed by Magistrate Judge Stanley A. Boone on 9/19/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Twenty (20) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLEMENTE GONZALEZ, Plaintiff, 12 13 Case No. 1:18-cv-00602-DAD-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO PAY FILING FEE v. 14 SELMA POLICE DEPARTMENT, et al., 15 Defendants. OBJECTIONS DUE WITHIN TWENTY DAYS 16 17 I. 18 BACKGROUND 19 Plaintiff Clemente Gonzalez, proceeding pro se, filed this civil rights action pursuant to 20 42 U.S.C. § 1983 on May 2, 2018. Along with his complaint, Plaintiff filed an application to 21 proceed without prepayment of fees in this action. (ECF No. 2.) The undersigned found that 22 Plaintiff’s application was inadequate to determine if Plaintiff was entitled to proceed in this 23 action without paying the filing fee. (ECF. No. 3.) Plaintiff was ordered to file a long form 24 application within twenty days of May 3, 2018. (Id.) 25 Plaintiff filed a long forma application on May 16, 2018. (ECF No. 6.) After review of 26 the application, the undersigned ordered Plaintiff to file supplemental briefing addressing why he 27 did not include unemployment income that had been included in the prior application, his 28 spouse’s income, and the monthly expenses claimed. (ECF No. 5.) Plaintiff filed a response on 1 1 May 29, 2018. (ECF No. 6.) 2 Upon review of Plaintiff’s response, the Court found that Plaintiff had not demonstrated 3 entitlement to proceed without prepayment of fees in this action and a findings and 4 recommendations was filed on June 1, 2018 recommending that the application to proceed 5 without prepayment of fees be denied. (ECF No. 7.) Plaintiff was ordered to file any objections 6 to the findings and recommendations within thirty days. (Id.) Plaintiff did not file an objection. 7 On August 13, 2018, District Judge Dale D. Drodz adopted the findings and recommendations. 8 (ECF No. 8.) Plaintiff’s application to proceed without prepayment of fees was denied; and 9 Plaintiff was ordered to pay the filing fee within thirty days of August 13, 2018. (Id.) More than 10 thirty days have passed and Plaintiff has not paid the filing fee or otherwise responded to the 11 August 13, 2018 order. 12 II. 13 DISCUSSION 14 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 15 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 16 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 17 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 18 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 19 2000). 20 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 21 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 22 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 23 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 24 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 25 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 26 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 27 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 28 of prosecution and failure to comply with local rules). 2 Plaintiff was ordered to pay the filing fee within thirty days of the August 13, 2018 order. 1 2 In the order, Plaintiff was advised that failure to comply with the order would result in this action 3 being dismissed. (ECF No. 8 at 2.) More than thirty have passed and Plaintiff has not paid the 4 filing fee in this action, or otherwise responded to the Court’s order. Plaintiff has failed to 5 comply with the order requiring him to pay the filing fee. For this reason, the Court recommends 6 that this action be dismissed. 7 III. 8 CONCLUSION AND RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 9 10 prejudice for Plaintiff’s failure to pay the filing fee in compliance with the August 13, 2018 11 order. These findings and recommendations are submitted to the district judge assigned to this 12 13 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty 14 (20) days of service of this recommendation, Plaintiff may file written objections to this findings 15 and recommendations with the court. Such a document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 17 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 18 Plaintiff is advised that failure to file objections within the specified time may result in the 19 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 20 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: September 19, 2018 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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