Jones v. Kern County et al, No. 1:2018cv00823 - Document 4 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Failure to Pay the Filing Fee Pursuant to 28 U.S.C. § 1915(a) and Failure to Obey the Court's Order, signed by Magistrate Judge Jennifer L. Thurston on 8/6/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES B. JONES, Plaintiff, 12 v. 13 14 KERN COUNTY, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-0823 - AWI-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY THE FILING FEE PURSUANT TO 28 U.S.C. § 1915(a) AND FAILURE TO OBEY THE COURT’S ORDER 16 On July 30, 2015, Charles B. Jones initiated an action pursuant to 42 U.S.C. § 1983, asserting 17 18 his civil rights arising under the First and Fourteenth Amendments were violated by the defendants. 19 (Doc. 1) For the following reasons, the Court recommends the action be DISMISSED without 20 prejudice. 21 I. Procedural History 22 Plaintiff initiated this action by filing a complaint on June 14, 2018. (Doc. 1) However, 23 Plaintiff failed to pay the filing fee. On June 18, 2018, the Court issued an order directing Plaintiff to 24 pay the filing fee or file a motion to proceed IFP within twenty-one days of the date of service. (Doc. 2) 25 Accordingly, Plaintiff was to respond to the order no later than July 12, 2018. (Doc. 15). In addition, 26 the order notified Plaintiff that “[f]ailure to comply with this order may result in dismissal of this action 27 pursuant to Local Rule 110.” Id. at 2 (emphasis in original). Nevertheless, Plaintiff failed to comply 28 with or otherwise respond to the Court’s order. 1 On July 17, 2018, the Court issued an order to show cause to Plaintiff, directing Plaintiff to 1 2 show cause why the action should not be dismissed for his failure to pay the filing fee and failure to 3 respond to the Court’s order. (Doc. 3) Again, Plaintiff was advised that the Court may dismiss an 4 action for failure to respond to an order of the Court. (Id. at 2) To date, Plaintiff has failed to respond 5 to the Court’s order. 6 II. Failure to Pay the Filing Fee As a general rule, all parties instituting any civil action, suit or proceeding in a United States 7 8 District Court must pay a filing fee. 28 U.S.C § 1914(a). An action may proceed despite a party’s 9 failure to pay only if the party is granted leave to proceed in forma pauperis pursuant to 28 U.S.C § 10 1915(a). See Andrews v. Cervantes, 492 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez, 169 F.3d at 1177. 11 As noted above, Plaintiff did not pay the filing fee, and the action may not proceed. 12 III. 13 Failure to obey the Court’s Order The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 14 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 15 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 16 power to control their dockets,” and in exercising that power, a court may impose sanctions including 17 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 18 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action 19 or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 20 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment 21 of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 22 comply with a court order). 23 In determining whether to dismiss an action for failure to prosecute, failure to obey a court 24 order, or failure to comply with the Local Rules, the court must consider several factors, including: “(1) 25 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 26 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 27 merits; and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1424 28 (9th Cir. 1986); see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831. 2 Here, the public’s interest in expeditiously resolving this litigation and the Court’s interest in 1 2 managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 3 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors dismissal”); 4 Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in managing their 5 dockets without being subject to noncompliant litigants). This Court cannot, and will not hold, this 6 case in abeyance based upon Plaintiff’s failure to comply with the Court’s orders and failure to 7 prosecute in a timely manner. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) 8 (explaining a plaintiff has the burden “to move toward... disposition at a reasonable pace, and to 9 refrain from dilatory and evasive tactics”). The risk of prejudice also weighs in favor of dismissal, since a presumption of injury arises 10 11 from the occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 12 F.2d 522, 524 (9th Cir. 1976). Finally, the Court warned Plaintiff the action could not proceed without payment of fees. 13 14 (Doc. 2 at 1; Doc. 3 at 1-2) In addition, Plaintiff was informed: “Failure to comply with this order 15 may result in dismissal of this action pursuant to Local Rule 110.” (Doc. 2 at 2, emphasis in original) 16 Again in the order to show cause, Plaintiff was informed that the Court “may dismiss an action with 17 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure to 18 comply with local rules.” (Doc. 3 at 2) These warnings satisfy the requirement that the Court consider 19 less drastic measures. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Indeed, the Court 20 need only warn a party once that the matter would be dismissed for failure to comply to satisfy the 21 requirements of Rule 41. Id.; see also Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n.6 22 (3d Cir. 1982) (identifying a “warning” as an alternative sanction) As the Ninth Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal 23 24 “in response to willful violation of a pretrial order.” Malone, 833 F.2d at 133. Consequently, the 25 policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal. 26 IV. 27 28 Findings and Recommendations Plaintiff has failed to file the requisite filing fee pursuant to 28 U.S.C. § 1914(a), and as a result, the matter cannot proceed before the Court at this time. Further, Plaintiff failed to obey the 3 1 Court’s Orders dated June 18, 2018 (Doc. 2) and July 17, 2018 (Doc. 3). 2 Accordingly, the Court RECOMMENDS: 3 1. fee and obey the Court’s order; and 4 5 This action be DISMISSED without prejudice for Plaintiff’s failure to pay the filing 2. The Clerk of Court be DIRECTED to close this action, because this order terminates the action in its entirety. 6 7 These Findings and Recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 9 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 10 days after being served with these Findings and Recommendations, Plaintiff may file written 11 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Defendant is advised that failure to file objections within the 13 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 14 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 15 16 17 18 IT IS SO ORDERED. Dated: August 6, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 4

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