Opinion
CV-22-1788-PHX-JFM
12-20-2022
Jorge Gastelum, Plaintiff v. City of Glendale, et al., Defendants.
REPORT & RECOMMENDATION TO THE HON. STEPHEN M. MCNAMEE
This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.
Plaintiff commenced this civil rights action on October 19, 2022 by filing his pro se Complaint (Doc. 1) and Application to Proceed In Forma Pauperis (Doc. 2). On October 20, 2022, the Court denied without prejudice Plaintiff's Application to Proceed In Forma Pauperis, with leave to file an amended application, on the basis that it was incomplete and made inconsistent allegations suggesting it failed to adequately reflect Plaintiff's financial status. Plaintiff was given a deadline to file an amended application or to pay the filing fees. (Order 10/20/22, Doc. 5.)
Plaintiff then filed an amended Application to Proceed In Forma Pauperis (Doc. 7), which was again deficient and made inconsistent allegations. Plaintiff was given through November 14, 2022 to file a Supplement to his Amended Application, under oath or penalty of perjury, to address the deficiencies and inconsistencies. (Order 11/1/22, Doc. 8.) Plaintiff did not do so. For the reasons expressed in the prior Order, the Court found Plaintiff failed to show he was entitled to proceed in forma pauperis, and the application was denied.
In the meantime, Plaintiff had filed a Consent to magistrate judge jurisdiction (Doc. 11). Local Rule of Civil Procedure 72.2(a)(4) grants magistrate judges authority to deny an IFP application where “the person requesting such status has expressly consented in writing to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).”
A deadline for Plaintiff to pay the filing fee was set, and Plaintiff was cautioned that if he failed to timely pay the fee, the case would be subject to dismissal. That deadline expired on December 13, 2022. (Order 11/30/22, Doc. 5.) No amended, or renewed application to proceed in forma pauperis has been filed. Nor has Plaintiff paid the filing fees, or otherwise responded or taken action to prosecute this case.
Parties filing actions in the United States District Court are required to pay filing fees. 28 U.S.C. § 1914(a). An action may proceed without the immediate payment of a filing fee only upon granting of in forma pauperis status. See 28 U.S.C. § 1915. Failure to pay the statutory filing fee will result in dismissal of these actions without prejudice. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995) (district court has authority to dismiss without prejudice a complaint for failure to pay filing fee); In re Perroton, 958 F.2d 889, 890 (9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay required filing fees).
Plaintiff is not a prisoner within the meaning of 28 U.S.C. § 1915(h), and thus the limitation on dismissals of prisoner suits under § 1915(b)(4) does not apply. Moreover, the dismissal is not recommended based on failure to comply with a court order (e.g. to file an IFP application or pay fees), but failure to pay statutorily required fees, where IFP status had already been denied. Accordingly, a multifactor analysis necessary to exercise of inherent power to dismiss for failure to prosecute or failure to comply with a court order (i.e. (1) interest in expeditiousness; (2) need to manage docket; (3) prejudice; (4) public policy re merits; and (5) alternatives, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)) is not required. Cf. Grindling v. Kaaukai, 851 Fed.Appx. 763, 764 (9th Cir. 2021) (five factor analysis applied to either/or order); Alvarez v. McMillian, 2022 WL 7713369 (D. Ariz. Sept. 21, 2022), report and recommendation adopted, 2022 WL 7545188 (D. Ariz. Oct. 13, 2022) (same); and Halloum v. Ryan, 2012 WL 12951307 (D. Ariz. Nov. 28, 2012) (five factor analysis applied to failure to respond to order to pay or show cause).
IT IS THEREFORE RECOMMENDED this action be DISMISSED WITHOUT PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”