(SS) Jones v. Commissioner of Social Security

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 NICOLE JONES, Case No. 1:19-cv-01049-DAD-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. FOR FAILURE TO PAY FILING FEE

14 COMMISSIONER OF SOCIAL SECURITY, (ECF No. 8)

15 Defendant. FOURTEEN DAY DEADLINE

16 17 On July 31, 2019, Nicole Jones (“Plaintiff”) filed the complaint in this action seeking 18 judicial review of the final decision of the Commissioner of Social Security (“Defendant”) 19 denying her application for benefits under the Social Security Act. (ECF No. 1.) Along with her 20 complaint, Plaintiff filed an application to proceed in forma pauperis in this matter. (ECF No. 21 2.) On August 1, 2019, the undersigned reviewed Plaintiff’s application to proceed in forma 22 pauperis and found that Plaintiff’s application did not show that she was entitled to proceed 23 without prepayment of fees in this action. (ECF No. 3.) The August 1, 2019 order required 24 Plaintiff to submit a long form application to proceed without prepayment of fees within thirty 25 days. (Id.) 26 On August 14, 2019, Plaintiff submitted a long form application to proceed without 27 prepayment of fees. (ECF No. 4.) Upon review of the long form application, findings and recommendations issued on August 15, 2019, recommending denying Plaintiff’s application to 1 proceed in this action without prepayment of fees. (ECF No. 5.) Plaintiff was provided with 2 notice of the findings and recommendations and that any objections to the findings and 3 recommendations were to be filed within fourteen days. (Id.) Plaintiff did not file objections but 4 on September 3, 2019, a motion for an extension of time to pay the filing fee was filed. (ECF 5 No. 6.) Plaintiff’s motion for an extension of time to pay the filing fee was denied as premature 6 on September 4, 2019. (ECF 7.) On October 23, 2019, the findings and recommendations was 7 adopted and Plaintiff was ordered to pay the filing fee in this matter within thirty days. (ECF 8 No. 8.) More than thirty days have passed and Plaintiff has not paid the filing fee or otherwise 9 responded to the Court’s October 23, 2019 order. 10 Here, Plaintiff was ordered to pay the filing fee within thirty days of October 23, 2019 11 and she has not done so. Rule 110 of the Local Rules of the United States District Court for the 12 Eastern District of California provides that “[f]ailure of counsel or of a party to comply with 13 these Rules or with any order of the Court may be grounds for imposition by the Court of any 14 and all sanctions . . . within the inherent power of the Court.” The Court has the inherent power 15 to control its docket and may, in the exercise of that power, impose sanctions where appropriate, 16 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 17 2000). 18 Plaintiff was advised in the October 23, 2019 order that her failure to pay the filing fee 19 would result in dismissal of this action without prejudice subject to refiling upon prepayment of 20 the filing fee. (ECF No. 8 at 2.) 21 Accordingly, IT IS HEREBY RECOMMENDED that: 22 1. This action be dismissed without prejudice for Plaintiff’s failure to pay the filing 23 fee; and 24 2. Should Plaintiff refile this action she should be required to prepay the full filing 25 fee. 26 This findings and recommendations is submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 1 | findings and recommendations with the court and serve a copy on all parties. Such a document 2 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 3 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 4 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 5 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 6 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. OF. a Se 9 | Dated: _November 26, 2019 __ Of 0 UNITED STATES MAGISTRATE JUDGE

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