Amps v. Magsig ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVARIS AMPS, Case No. 1:23-cv-01255-JLT-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. FOR FAILURE TO COMPLY WITH COURT ORDER FAILURE TO 14 MATHON MAGSIG, PROSECUTE AND FAILURE TO PAY FILING FEE 15 Defendant. (ECF No. 2) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS 18 19 Travaris Amps (“Plaintiff”), who is proceeding pro se, filed this civil rights action on 20 August 22, 2023. (ECF No. 1.) Plaintiff did not pay the filing fee and did not submit an 21 application to proceed in forma pauperis. On August 23, 2023, the Court ordered Plaintiff to 22 either submit an application to proceed in forma pauperis or to pay the filing fee, within twenty- 23 one (21) days of entry of the order. (ECF No. 2.) Plaintiff has not filed an application nor paid 24 the filing fee by the deadline to do so. 25 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, 1 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 3 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 4 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 5 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 6 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 7 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 8 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 9 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 10 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 11 of prosecution and failure to comply with local rules). 12 In determining whether to dismiss an action for failure to comply with a pretrial order, 13 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 14 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 15 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 16 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 17 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 18 1986). These factors guide a court in deciding what to do, and are not conditions that must be 19 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 20 Litigation, 460 F.3d at 1226. 21 In this instance the public’s interest in expeditious resolution of the litigation and the 22 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff has neither filed an 23 application to proceed in forma pauperis, paid the filing fee, nor otherwise responded to the 24 Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 25 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 26 diligently litigate this action. 27 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 1 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 2 dismissal. 3 The public policy in favor of deciding cases on their merits is outweighed by the factors 4 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can 5 proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the 6 action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the 7 fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 8 Finally, a court’s warning to a party that their failure to obey the court’s order will result 9 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 10 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 23, 2023, order 11 expressly stated: “Failure to comply with this order will result in dismissal of this action.” (ECF 12 No. 2.) Thus, Plaintiff had adequate warning that dismissal of this action would result from 13 noncompliance with the Court’s order. Further, Plaintiff may still file an application to proceed 14 in forma pauperis during the objection period and the Court will consider the application. 15 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for 16 Plaintiff’s failure to pay the filing fee or file an application to proceed in forma pauperis in this 17 action, failure to abide by the Court’s order, and failure to prosecute. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 These findings and recommendations are submitted to the district judge assigned to this 2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 3 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 4 | and recommendations with the court. Such a document should be captioned “Objections to 5 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 6 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 7 | Plaintiff is advised that failure to file objections within the specified time may result in the 8 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 9 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 i IT IS SO ORDERED. FA. ee 12 | Dated: _ September 20, 2023 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28