(PC) Cramer v. Employment Development Department et al, No. 1:2023cv01361 - Document 9 (E.D. Cal. 2023)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action Without Prejudice for Failure to Obey Court Order, Failure to Pay Filing Fee and Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 11/27/2023. Referred to Judge Thurston. Objections to F&R due within Fourteen-Days. (Maldonado, C)
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(PC) Cramer v. Employment Development Department et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW B. CRAMER, 12 Plaintiff, 13 14 v. EMPLOYMENT DEVELOPMENT DEPARTMENT, et al., 15 Defendants. No. 1:23-cv-01361-JLT-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY COURT ORDER, FAILURE TO PAY FILING FEE AND FAILURE TO PROSECUTE (Doc. 8) 16 17 18 Plaintiff Matthew B. Cramer (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 15, 2023, 20 together with an application to proceed in forma pauperis. (Docs. 1, 2.) 21 On September 25, 2023, the Court issued findings and recommendations that 22 recommended Plaintiff’s motion to proceed in forma pauperis be denied because he was subject 23 to the three-strikes bar imposed by 28 U.S.C. § 1915(g) and that Plaintiff be ordered to pay the 24 $402.00 initial filing fee in full to proceed with this action. (Doc. 7.) The Court also determined 25 that the allegations in the complaint did not satisfy the imminent danger exception to § 1915(g). 26 (Id. at 2.) Plaintiff did not file any objections, and on October 20, 2023, the assigned District 27 Judge issued an order adopting the findings and recommendations and ordering Plaintiff to pay 28 1 Dockets.Justia.com 1 the $402.00 filing fee in full within twenty-one (21) days of service of the order. (Doc. 8.) In 2 that order, Plaintiff was advised that his failure to pay the required filing fee as ordered would 3 result in the dismissal of this action without prejudice without further notice. (Id. at 2.) More 4 than twenty-one (21) days have passed, and Plaintiff has not yet paid the filing fee or otherwise 5 responded to the Court’s order. District courts have the inherent power to control their dockets and “[i]n the exercise of 6 7 that power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v. 8 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, 9 based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply 10 with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for 11 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) 12 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 13 Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to comply with court 14 order). 15 In determining whether to dismiss an action, the Court must consider several factors: (1) 16 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 17 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 18 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 19 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988); see also In 20 re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 21 2006) (standards governing dismissal for failure to comply with court orders). These factors 22 guide a court in deciding what to do and are not conditions that must be met in order for a court to 23 take action. Id. (citation omitted). 24 A civil action may not proceed absent the submission of either the filing fee or an 25 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiff’s application to 26 proceed in forma pauperis has been denied, he has failed to pay the filing fee, and he has not 27 otherwise responded to the Court’s order, the Court is left with no alternative but to dismiss this 28 action. The matter has been pending since September 15, 2023, and can proceed no further 2 1 without Plaintiff’s cooperation and compliance with the Court’s order. Moreover, the action 2 cannot simply remain idle on the Court’s docket, unprosecuted, awaiting Plaintiff’s compliance. 3 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, 4 without prejudice, for Plaintiff’s failure to comply with the Court’s order of October 20, 2023, 5 (Doc. 8), failure to pay the filing fee, and failure to prosecute this action. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 8 being served with these findings and recommendations, Plaintiff may file written objections with 9 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Plaintiff is advised that the failure to file objections within the specified 11 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 12 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 13 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. Dated: /s/ Barbara November 27, 2023 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3
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