Opinion
CASE NO. 3:15-CV-05922-BHS-JRC
03-14-2016
ANTWONE DORNELL GOOLSBY, Plaintiff, v. JAY INSLEE et al., Defendants.
REPORT AND RECOMMENDATION NOTED: April 8, 2016
This 42 U.S.C. §1983 civil rights action has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4.
On December 18, 2015, plaintiff Antwone Dornell Goolsby filed a 42 U.S.C. § 1983 complaint against defendants Jay Inslee, Brad Owen and Kathleen O'Toole. Dkt. 1-1. Plaintiff did not pay the $400.00 filing fee or submit a proper application to proceed in forma pauperis (IFP). On December 18, 2015, the Clerk advised plaintiff of his filing deficiencies and directed plaintiff to pay or submit the proper IFP application by January 19, 2016. Dkt. 2.
On January 25, 2016, when plaintiff failed to file a proper in forma pauperis application, the Court ordered him to submit the full $400.00 filing fee or submit the proper in forma pauperis application by February 25, 2016. Dkt. 4. Plaintiff was further advised that his failure to do so would result in the Court's recommendation that this action be dismissed. Dkt. 4. Plaintiff has not responded to the Court's order, submitted a proper in forma pauperis form, or paid the $400.00 filing fee.
The Court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). Plaintiff has not presented a proper application and, the Court has broad discretion in denying in forma pauperis status. Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied, 375 U.S. 845 (1963). A district court has authority to dismiss a plaintiff's action because of failure to prosecute or because of failure to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, (1962) (holding that a court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992) (holding that a district court may dismiss an action for failure to comply with any order of the court).
Plaintiff was given an opportunity to pay the filing fee or submit a proper in forma pauperis application. He has not done so nor has he requested additional time to comply with the Court's order. Thus, the Court recommends that this matter be dismissed without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is directed set this matter for consideration on April 8, 2016, as noted in the caption.
DATED this 14th day of March, 2016.
/s/_________
J. Richard Creatura
United States Magistrate Judge