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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 AMBER TRUEHEART, Case No. 1:23-cv-01710-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING DISMISSING ACTION

13 v. FOR FAILURE TO COMPLY WITH

COURT ORDER FAILURE TO

14 JUDGE BRIAN ARAX, PROSECUTE AND FAILURE TO PAY

FILING FEE

15 Defendant.

ORDER DIRECTING CLERK OF THE

16 COURT TO RANDOMLY ASSIGN A

DISTRICT JUDGE

17 (ECF Nos. 2, 3) 18

OBJECTIONS DUE WITHIN FOURTEEN

19 DAYS

20 21 Amber Trueheart (“Plaintiff”), proceeding pro se, filed this civil rights action on 22 December 12, 2023. (ECF No. 1.) Plaintiff did not pay the filing fee in this action and instead 23 filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) 24 Upon review of the application, the Court found Plaintiff’s application to proceed in forma 25 pauperis was incomplete. Specifically, Plaintiff failed to provide any response to question 26 number 3 regarding additional income over the past twelve months. (Id.) On December 14, 27 2023, the Court issued an order notifying Plaintiff she must submit a complete application if she wishes for her application to proceed in forma pauperis to be considered by the Court, and 1 ordered a completed application be submitted within thirty (30) days of service of the order. 2 (ECF No. 3.) Plaintiff has not filed an application nor paid the filing fee by the deadline to do 3 so. 4 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 5 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 6 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 7 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 8 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 9 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 10 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 11 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 12 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 13 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 14 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 15 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 16 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 17 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 18 of prosecution and failure to comply with local rules). 19 In determining whether to dismiss an action for failure to comply with a pretrial order, 20 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 21 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 22 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 23 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 24 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 25 1986). These factors guide a court in deciding what to do, and are not conditions that must be 26 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 27 Litigation, 460 F.3d at 1226. 1 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff has neither filed an 2 application to proceed in forma pauperis, paid the filing fee, nor otherwise responded to the 3 Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 4 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 5 diligently litigate this action. 6 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 7 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 8 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 9 dismissal. 10 The public policy in favor of deciding cases on their merits is outweighed by the factors 11 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can 12 proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the 13 action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the 14 fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 15 Finally, a court’s warning to a party that their failure to obey the court’s order will result 16 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 17 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 23, 2023, order 18 expressly stated: “Failure to comply with this order will result in dismissal of this action.” (ECF 19 No. 2.) Thus, Plaintiff had adequate warning that dismissal of this action would result from 20 noncompliance with the Court’s order. Further, Plaintiff may still file an application to proceed 21 in forma pauperis during the objection period and the Court will consider the application. 22 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for 23 Plaintiff’s failure to pay the filing fee or file a completed application to proceed in forma 24 pauperis in this action, failure to abide by the Court’s order, and failure to prosecute. 25 These findings and recommendations are submitted to the district judge assigned to this 26 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 27 (14) days of service of this recommendation, Plaintiff may file written objections to this findings 1 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 2 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 3 | Plaintiff is advised that failure to file objections within the specified time may result in the 4 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 5 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to randomly 7 | assign this matter to a District Judge. 8 9 IT IS SO ORDERED. DAA (e_ 10 | Dated: _January 19, 2024 _ ef 4 UNITED STATES MAGISTRATE JUDGE

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