(PS) Braggs v. Ricketts

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BRAGGS, No. 2:23–cv–00598–KJM–KJN PS 12 Plaintiff, ORDER 13 v. 14 DONAT RICKETTS, 15 Defendant. 16 17 On April 20, 2023, the undersigned recommended plaintiff’s application to proceed in 18 forma pauperis (“IFP”) be denied because plaintiff’s income surpassed 150% of the 2023 federal 19 poverty guidelines. (ECF No. 9 at 1.) The findings and recommendations were not adopted and 20 plaintiff’s IFP application was remanded to the undersigned for further review and for 21 consideration of defendant’s “ex parte motion to strike,” which the undersigned construed as an 22 opposition to plaintiff’s IFP application.1 (See ECF No. 11 at 1, citing ECF No. 10.) 23 On June 5, 2023, the undersigned ordered plaintiff to either respond to the allegations in 24 defendant's opposition within thirty days or pay the remaining filing fee within thirty days. (ECF 25 No. 11.) However, over thirty days passed and plaintiff has not complied with the court’s order. 26 “District courts have inherent power to control their dockets” and in exercising that 27 1 Defendant certified that the opposition was served on plaintiff on April 13, 2023. (ECF No. 8 at 28 8.) 1 || power, may impose sanctions, including dismissal of an action. Thompson v. Hous. Auth., City 2 | of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 3 || party's failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 4 | Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with 5 || acourt order to amend a complaint). Rule 41(b) of the Federal Rules of Civil Procedure 6 || authorizes courts to dismiss an action for failure to comply with a court order. 7 The court has considered whether this action should be dismissed at this juncture due to 8 | plaintiffs failure to respond to the court’s June 5, 2023 order. However, in light of plaintiffs pro 9 || se status, the court first attempts lesser sanctions by issuing this order to show cause. 10 ORDER 11 Accordingly, IT IS ORDERED that: 12 1. Within twenty-one days of the date of this order, plaintiff shall show cause in 13 writing why this action should not be dismissed with prejudice pursuant to Federal 14 Rule of Civil Procedure 41(b) based on plaintiffs failure to comply with the 15 court’s June 5, 2023 order, ECF No. 11; 16 2. Within twenty-one days of this order, plaintiff shall respond to the allegations in 17 defendant's opposition, ECF No. 8, or pay the remaining filing fee; 18 3. Failure to timely comply with the terms of this order will result in a 19 recommendation that this action be dismissed with prejudice pursuant to Federal 20 Rule of Civil Procedure 41(b); and 21 4. The Clerk of Court shall serve copies of the following on both parties: 22 a. Defendant’s April 17, 2023 opposition (erroneously titled “Ex Parte 23 Motion to Strike”), ECF No. 8; 24 b. The court’s June 5, 2023 order, ECF No. 11; and 25 c. this order. 26 || Dated: October 10, 2023 brag.0598 Ae ¥ L Notrrmann— 28 KENDALL J. NE _ UNITED STATES MAGISTRATE JUDGE