1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE AVALOS, 1:24-cv-01476-HBK (PC)

10 Plaintiff, ORDER TO ASSIGN TO DISTRICT JUDGE

11 v. FINDINGS AND RECOMMENDATION TO

DISMISS ACTION FOR FAILURE TO OBEY

12 ANDREW TRIPPLE, et al., COURT ORDER AND PROSECUTE1

13 Defendants. 14-DAY DEADLINE

14

15 16 Plaintiff Jose Avalos, who is confined in the Madera County Jail, is proceeding pro se in 17 this civil action. For the reasons set forth below, the undersigned recommends the District Court 18 dismiss this action without prejudice for Plaintiff’s failure to comply with court orders and 19 prosecute this action. 20 BACKGROUND 21 On December 4, 2024, Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 22 1983. (Doc. No. 1). Plaintiff neither paid the filing fee nor accompanied his complaint with an 23 application to proceed in forma pauperis (“IFP”). (See docket). Accordingly, the same day, the 24 Court issued an Order directing Plaintiff within thirty (30) days to either pay the $405.00 filing 25 fee or submit an enclosed IFP application. (Doc. No. 3). The Court specifically advised Plaintiff 26 that if he failed to timely respond to the Order or seek an extension of time to do so, the 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 undersigned would recommend the Court dismiss this case for his failure to comply with a court 2 order and/or prosecute this action.” (Id. at 1). As of the date of these Findings and 3 Recommendations, Plaintiff has not paid the $405 filing fee nor applied to proceed in forma 4 pauperis and the time to do so has expired. (See docket). 5 APPLICABLE LAW 6 A. Plaintiff’s is Required to Pay the Filing Fee 7 All parties instituting any civil action, suit, or proceeding in a district court of the United 8 States, except an application for writ of habeas corpus, must pay a filing fee of $405.00. See 28 9 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only 10 if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 11 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 12 The fee is not waived for prisoners, however. If granted leave to proceed IFP, a prisoner 13 nevertheless remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 14 Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 15 regardless of whether his action is dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); 16 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 The Court advised Plaintiff that for this case to proceed further, he must pay the $405.00 18 filing fee or submit an IFP application within 30 days of receiving the December 4, 2024 Order. 19 (See Doc. No. 3). Because Plaintiff has failed to either pay the filing fee of $405.00 or submit a 20 IFP application, Plaintiff’s case may be dismissed without prejudice. See Escobedo v. Applebees, 21 787 F.3d 1226, 1228 (9th Cir. 2015) (finding that a district court “will be free to dismiss the 22 complaint” if the filing fee is not paid or application to proceed in forma pauperis is not granted); 23 see also In re Perroton, 958 F.2d 889, 890 (9th Cir. 1992) (affirming dismissal of pro se litigant’s 24 claim for failure to pay required filing fees). 25 B. Failure to Prosecute 26 Alternatively, Federal Rule of Civil Procedure 41(b) permits the court to involuntarily 27 dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules 28 or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 1 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with 2 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 3 any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . 4 . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 5 power to control their dockets” and, in exercising that power, may impose sanctions, including 6 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 7 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 8 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 9 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 10 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 11 a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure 12 to prosecute and to comply with local rules). 13 In determining whether to dismiss an action, the Court must consider several factors: 14 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 15 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 16 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 17 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 18 After considering each of the above-stated factors, the undersigned concludes dismissal 19 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 20 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 21 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 22 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 23 overstated. This Court has one of the heaviest caseloads in the nation, and due to the delay in 24 filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operated 25 under a declared judicial emergency through May 2, 2021. See In re Approval of the Judicial 26 Emergency Declared in the Eastern District of California, 956 F.3d 1175 (9th Cir. 2020). This 27 Court’s time is better spent on its other matters than needlessly consumed managing a case with a 28 recalcitrant litigant. The Court cannot effectively manage its docket when a litigant ceases to 1 litigate his/her case or respond to a court order. Thus, the Court finds that the second factor 2 weighs in favor of dismissal. 3 Delays inevitably have the inherent risk that evidence will become stale, or witnesses’ 4 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 5 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 6 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 7 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 8 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 9 the third factor weighs in favor of dismissal. 10 The fourth factor usually weighs against dismissal because public policy favors the 11 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 12 However, “this factor lends little support to a party whose responsibility it is to move a case 13 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 14 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 15 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 16 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 17 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary 18 dismissal with prejudice of habeas petition where petitioner failed to timely respond to court 19 order and noting “the weight of the docket-managing factor depends upon the size and load of the 20 docket, and those in the best position to know what that is are our beleaguered trial judges.”). 21 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 22 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 23 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The December 4, 2024 Order 24 directing Plaintiff to submit an IFP application or pay the filing fee expressly warned Plaintiff that 25 his failure to timely comply would result in a recommendation of dismissal of this action for his 26 failure to prosecute this action and as a sanction under the Court’s Local Rules. (See Doc. No. 3 27 at 1). Thus, Plaintiff had an adequate warning that dismissal could result from his 28 noncompliance. And the instant dismissal is a dismissal without prejudice, which is a lesser 1 | sanction than a dismissal with prejudice, thereby addressing the fifth factor. 2 After considering the factors set forth supra and binding case law, in the alternative, the 3 | undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 4} 110. 5 Accordingly, it is ORDERED: 6 The Clerk of Court shall randomly assign this case to a district judge for consideration of 7 | these Findings and Recommendations. 8 It is further RECOMMENDED: 9 This action be DISMISSED without prejudice. 10 NOTICE 11 These Findings and Recommendations will be submitted to the United States District 12 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)7). Within 14 days 13 | of the date of service of these Findings and Recommendations, Plaintiff may file written 14 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 15 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 16 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 17 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 | Dated: _ January 15,2025 Mihaw. Wh. foareh Zaskth 20 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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