(PC) Contreras v. Biter, et al., No. 1:2018cv01117 - Document 8 (E.D. Cal. 2018)

Court Description: ORDER DIRECTING Clerk of Court to Randomly ASSIGN a Fresno District Judge; FINDINGS and RECOMMENDATIONS to Dismiss 1 Action for Failure to Comply with Court Order, Failure to Prosecute, and Failure to Pay Filing Fee signed by Magistrate Judge Stanley A. Boone on 11/1/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 No.: 1:18-cv-01117-SAB (PC) DAVID CONTRERAS, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A FRESNO DISTRICT JUDGE Plaintiff, v. 15 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO COMPLY WITH COURT ORDER, FAILURE TO PROSECUTE, AND FAILURE TO PAY FILING FEE 16 FOURTEEN-DAY DEADLINE 13 14 MARTIN BITER, et al., Defendants. 17 18 I. 19 INTRODUCTION 20 Plaintiff David Contreras is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. ' 1983. Plaintiff initiated this action by filing a complaint on August 15, 22 2018, in the United States District Court for the Central District of California. (ECF No. 1.) On 23 August 20, 2018, the matter was transferred to this Court. (ECF No. 5.) 24 On August 20, 2018, Plaintiff was ordered to submit an application to proceed in forma 25 pauperis in this action pursuant to 28 U.S.C. § 1915, or pay the $400.00 filing fee. (ECF No. 7.) 26 Plaintiff was permitted forty-five (45) days to comply with that order. More than forty-five (45) 27 days have passed, and Plaintiff has not filed any application, paid the filing fee, or otherwise 28 responded to the Court’s order. 1 1 II. 2 DISCUSSION 3 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 4 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 5 . . . within the inherent power of the Court.” The Court has the inherent power to control its docket 6 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of 7 the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 8 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 9 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 10 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 11 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 12 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 13 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United States 14 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); 15 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 16 failure to comply with local rules). 17 Plaintiff was ordered to either file an application to proceed in forma pauperis or pay the 18 filing fee within forty-five (45) days of the August 20, 2018 order. In the order, Plaintiff was 19 expressly warned that the failure to comply with the order would result in this action being 20 dismissed. (ECF No. 7. at p. 2.) More than forty-five (45) days have passed, and Plaintiff has not 21 filed the application to proceed in forma pauperis, paid the filing fee in this action, or otherwise 22 responded to the Court’s order. The Court cannot effectively manage its docket if a party ceases 23 litigating the case. For these reasons, the Court recommends that this action be dismissed. 24 III. 25 CONCLUSION AND RECOMMENDATION 26 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a Fresno 27 District Judge to this action. 28 /// 2 1 Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, without 2 prejudice, for Plaintiff’s failure to prosecute, and failure to pay the filing fee or submit an 3 application to proceed in forma pauperis in compliance with the Court’s order. 4 These findings and recommendations are submitted to the district judge assigned to this 5 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 6 days of service of this recommendation, Plaintiff may file written objections to this findings and 7 recommendations with the Court. Such a document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 9 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 10 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: November 1, 2018 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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