Brigner et al v. Walker et al, No. 1:2021cv00526 - Document 3 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to Obey a Court Order, Failure Pay Filing Fee or Submit Applications to Proceed in Forma Pauperis and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 05/12/2021. Referred to Judge Drozd; Objections to F&R due within Fourteen-Days. (Flores, E)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 8 BRENT ALAN BRIGNER and JEANLOUISE HALLAL, Plaintiffs, 9 10 11 12 13 v. CLAYTON KEN WALKER, et al., Defendants. Case No. 1:21-cv-00526-DAD-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER, FAILURE PAY FILING FEE OR SUBMIT APPLICATIONS TO PROCEED IN FORMA PAUPERIS AND FAILURE TO PROSECUTE (Doc. 2) FOURTEEN-DAY DEADLINE 14 15 Plaintiffs Brent Alan Brigner and JeanLouise Hallal, proceeding pro se, filed the instant 16 action on March 30, 2021. (Doc. 1.) Plaintiffs failed to pay the $402.00 filing fee for this action 17 or submit applications to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 18 On March 31, 2021, the Court issued an order directing Plaintiffs to submit completed and 19 signed applications to proceed in forma pauperis or pay the $402.00 filing fee for this action 20 within thirty (30) days following service. (Doc. 2.) Plaintiffs were warned that failure to comply 21 with the Court’s order would result in a recommendation for dismissal of this action. (Id.) More 22 than thirty days have passed since service of the Court’s order and Plaintiffs have not filed 23 applications to proceed in forma pauperis or paid the $402.00 filing fee for this action. 24 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 25 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 26 within the inherent power of the Court.” District courts have the inherent power to control their 27 dockets and “[i]n the exercise of that power they may impose sanctions including, where 28 1 1 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 2 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 4 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 5 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 6 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 7 (dismissal for failure to comply with court order). 8 9 In determining whether to dismiss an action, the Court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 10 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 12 F.2d 1421, 1423 (9th Cir. 1986); see also In re Phenylpropanolamine (PPA) Products Liability 13 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (standards governing dismissal for failure to 14 comply with court orders). These factors guide a court in deciding what to do and are not 15 conditions that must be met in order for a court to take action. Id. (citation omitted). 16 A civil action may not proceed absent the submission of either the filing fee or an 17 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiffs have failed to 18 pay the filing fee, file applications to proceed in forma pauperis or otherwise responded to the 19 Court’s order, the Court is left with no alternative but to dismiss this action. This action can 20 proceed no further without Plaintiffs’ cooperation and compliance with the Court’s order. 21 Moreover, the matter cannot simply remain idle on the Court’s docket, unprosecuted, awaiting 22 Plaintiffs’ compliance. 23 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, 24 without prejudice, for Plaintiffs’ failure to comply with the Court’s order, failure to pay the filing 25 fee or submit applications to proceed in forma pauperis and failure to prosecute this action. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 28 being served with these findings and recommendations, Plaintiffs may file written objections with 2 1 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Plaintiffs are advised that the failure to file objections within the specified 3 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 4 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 5 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara May 12, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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