Amps v. Magsig ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 TRAVARIS AMPS, Case No. 1:23-cv-01256-ADA-BAM 8 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 9 v. FAILURE TO OBEY A COURT ORDER 10 NATHAN MAGSIG, (Doc. 2) 11 Defendant. FOURTEEN-DAY DEADLINE 12 13 Plaintiff Travaris Amps, proceeding pro se, filed the instant civil action August 22, 2023. 14 (Doc. 1.) On August 23, 2023, Plaintiff was directed to submit an application to proceed in forma 15 paupers or pay the $402.00 filing fee within thirty (30) days of service of the Court’s order. 16 (Doc. 2.) Plaintiff was warned that failure to comply with the Court’s order would result in a 17 recommendation for dismissal of this action. (Id.) More than thirty days have passed since 18 service of the Court’s order and Plaintiff has not filed an application to proceed in forma 19 pauperis, paid the filing fee, or otherwise complied with the Court’s order.1 20 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 21 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 22 within the inherent power of the Court.” District courts have the inherent power to control their 23 dockets and “[i]n the exercise of that power they may impose sanctions including, where 24 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 25 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 26 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 27 1 Plaintiff filed a notice with this Court on August 24, 2023. (Doc. 3.) The notice is unrelated to the 28 Court’s directive to pay the filing fee or submit an application to proceed in forma pauperis. 1 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 2 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 3 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 4 (dismissal for failure to comply with court order). 5 In determining whether to dismiss an action, the Court must consider several factors: (1) 6 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 7 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 8 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 9 F.2d 1421, 1423 (9th Cir. 1986); see also In re Phenylpropanolamine (PPA) Products Liability 10 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (standards governing dismissal for failure to 11 comply with court orders). These factors guide a court in deciding what to do and are not 12 conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 13 Products Liability Litigation,460 F.3d at 1226 (citation omitted). 14 A civil action may not proceed absent the submission of either the filing fee or an 15 application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. As Plaintiff has failed to pay 16 the filing fee, file the proper application to proceed in forma pauperis, or respond to the Court’s 17 order, the Court is left with no alternative but to dismiss this action. This action can proceed no 18 further without Plaintiff’s cooperation and compliance with the Court’s order. Moreover, the 19 matter cannot simply remain idle on the Court’s docket, unprosecuted, awaiting Plaintiff’s 20 compliance. 21 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED, without 22 prejudice, for Plaintiff’s failure to comply with the Court’s order, failure to pay the filing fee or 23 submit the proper application to proceed in forma pauperis, and failure to prosecute this action. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 26 being served with these findings and recommendations, Plaintiffs may file written objections with 27 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” Plaintiffs are advised that the failure to file objections within the specified 1 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 2 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 3 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: October 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28