(PC) Stribling v. Kern Valley State Prison ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON LAMONT STRIBLING, Case No. 1:18-cv-01658-LJO-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. CASE, WITHOUT PREJUDICE, FOR FAILURE TO PAY FILING FEE AND 14 KERN VALLEY STATE PRISON, et al. FAILURE TO OBEY COURT ORDER 15 Defendants. (ECF No. 16) 16 FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Aaron Lamont Stribling is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 On November 19, 2018, Plaintiff initiated the instant action in the United States District 21 Court for the Southern District of California. (ECF No. 1.) On December 4, 2018, the instant 22 action was transferred to this Court. (ECF No. 2.) On December 7, 2018, the Court ordered 23 Plaintiff to either submit a complete application to proceed in forma pauperis, or, in the alternative, 24 pay the $400.00 filing fee for this action, within forty-five days of the date of service of the order. 25 (ECF No. 5.) 26 On January 9, 2019, Plaintiff filed a motion for court order to make prison pay filing fee 27 with money in Plaintiff’s prison trust account. (ECF No. 6.) On January 10, 2019, the Court issued 28 Findings and Recommendation recommending that Plaintiff’s motion to direct the prison to pay the 1 filing fee be denied. (ECF No. 7.) On February 11, 2019, Plaintiff filed objections to the 2 undersigned’s Findings and Recommendation. (ECF No. 8.) The Court notes that pursuant to the 3 Inmate Transaction list attached to Plaintiff’s objections, he had $15,919.68 in his trust account on 4 January 9, 2019. (Id. at 2.) Several withdrawals were made from his trust account and he had 5 $13,823.22 remaining on January 10, 2019. (Id.) On February 12, 2019, the District Judge adopted 6 the undersigned’s Findings and Recommendation in full and denied Plaintiff’s motion to direct the 7 prison to pay the filing fee. (ECF No. 9.) The District Judge also granted Plaintiff thirty days from 8 the date of service of the order to either pay the filing fee in full or submit a complete application 9 to proceed in forma pauperis. (Id.) 10 On March 4, 2019, Plaintiff filed a motion for disqualification of the District Judge and a 11 motion for reconsideration of the District Judge’s February 12, 2019 order adopting the Findings 12 and Recommendation and denying Plaintiff’s motion to direct the prison to pay the filing fee. (ECF 13 No. 10.) On March 14, 2019, the District Judge denied Plaintiff’s motions for disqualification and 14 reconsideration. (ECF No. 11.) 15 On March 27, 2019, the Court issued an order finding that the interest of justice required 16 that Plaintiff be granted an additional twenty-one (21) days from the date of the service of the order 17 to either pay the $400.00 filing fee in full or submit a complete application to proceed in forma 18 pauperis. (ECF No. 12.) 19 After Plaintiff failed to either pay the filing fee or submit an application to proceed in forma 20 pauperis within the allotted time, on May 3, 2019, the Court issued an order requiring Plaintiff to 21 show cause in writing why this action should not be dismissed for failure to pay the filing fee in 22 full or submit a complete application to proceed in forma pauperis. (ECF No. 13.) On May 20, 23 2019, Plaintiff filed a written response to the order to show cause. (ECF No. 14.) 24 On May 30, 2019, the Court issued an order discharging the May 3, 2019 order to show 25 cause and ordering Plaintiff to pay the $400.00 filing fee in full within forty-five (45) days from 26 the date of service of the order. (ECF No. 16.) In that order, Plaintiff was warned that, if he failed 27 to pay the filing fee within the specified time, this action would be dismissed. (Id. at 2.) 28 The forty-five (45) day period has expired, and Plaintiff has failed to pay the $400.00 filing 1 fee in full or otherwise respond to the Court’s May 30, 2019 order. 2 District courts have the inherent power to control their dockets and “[i]n the exercise of that 3 power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v. 4 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). In determining whether to dismiss an action, 5 the Court must consider several factors: (1) the public’s interest in expeditious resolution of 6 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 7 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 8 sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 9 1439, 1440 (9th Cir. 1988); see also In re Phenylpropanolamine (PPA) Products Liability 10 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (standards governing dismissal for failure to comply 11 with court orders). These factors guide a court in deciding what to do and are not conditions that 12 must be met in order for a court to take action. Id. (citation omitted). 13 A civil action may not proceed absent the submission of either the filing fee or an 14 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Since Plaintiff has not 15 submitted an application to proceed in forma pauperis, Plaintiff has failed to pay the filing fee, and 16 Plaintiff has not otherwise responded to the Court’s May 30, 2019 order, the Court is left with no 17 alternative but to dismiss this action. This action has been pending since November 2018, and can 18 proceed no further without Plaintiff’s cooperation and compliance with the Court’s order. 19 Moreover, the matter cannot simply remain idle on the Court’s docket, unprosecuted, awaiting 20 Plaintiff’s compliance. 21 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, 22 without prejudice, for failure to pay the filing fee and Plaintiff’s failure to comply with the Court’s 23 May 30, 2019 order, (ECF No. 16). 24 /// 25 /// 26 /// 27 /// 28 /// 1 These Findings and Recommendation will be submitted to the United States District Judge 2 | assigned to the case, as required by 28 U.S.C. § 636(b)(). Within fourteen (14) days after being 3 | served with these Findings and Recommendation, Plaintiff may file written objections with the 4 | Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 | Recommendations.” Plaintiff is advised that the failure to file objections within the specified time 6 | may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 7 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 8 | 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _August 1, 2019 _ OO UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28