(PC) Nichols v. Merced County ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 LAWRENCE PAUL NICHOLS, Case No. 1:23-cv-00601-BAM (PC) 8 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 9 v. ACTION 10 MERCED COUNTY, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 11 Defendant. FAILURE TO OBEY A COURT ORDER 12 (Doc. 5) 13 FOURTEEN-DAY DEADLINE 14 15 Plaintiff Lawrence Paul Nichols is a state prisoner proceeding pro se in this civil rights 16 action under 42 U.S.C. § 1983. The matter was transferred to the Fresno Division of the Eastern 17 District of California on April 19, 2023. (Doc. 3.) 18 On April 21, 2023, Plaintiff was directed to submit an application to proceed in forma 19 paupers or pay the $402.00 filing fee within thirty (30) days of service of the Court’s order. 20 (Doc. 5.) Plaintiff was warned that failure to comply with the Court’s order would result 21 dismissal of this action. (Id.) More than thirty days have passed since service of the Court’s order 22 and Plaintiff has not filed an application to proceed in forma pauperis, paid the filing fee, or 23 otherwise complied with the Court’s order. 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 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 In determining whether to dismiss an action, the Court must consider several factors: (1) 9 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. 460 F.3d at 1226 (citation 16 omitted). 17 A civil action may not proceed absent the submission of either the filing fee or an 18 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiff has failed to pay 19 the filing fee, file the proper application to proceed in forma pauperis, or respond to the Court’s 20 order, the Court is left with no alternative but to dismiss this action. This action can proceed no 21 further without Plaintiff’s cooperation and compliance with the Court’s order. Moreover, the 22 matter cannot simply remain idle on the Court’s docket, unprosecuted, awaiting Plaintiff’s 23 compliance. 24 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 25 district judge to this action. 26 Further, for the reasons stated above, IT IS HEREBY RECOMMENDED that this action 27 be DISMISSED, without prejudice, for Plaintiff’s failure to comply with the Court’s order, failure 28 to pay the filing fee or submit the proper application to proceed in forma pauperis, and failure to 1 prosecute this action. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 4 being served with these findings and recommendations, Plaintiffs may file written objections with 5 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Plaintiffs are advised that the failure to file objections within the specified 7 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 8 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 9 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: June 6, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28