Opinion
Case No. 1:18-cv-00571-DAD-EPG (PC)
10-30-2019
GUILLERMO TRUJILLO CRUZ, Plaintiff, v. B. VALDEZ, Defendant.
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINITFF'S CASE BE DISMISSED FOR FAILURE TO PAY THE FILING FEE AND FOR FAILURE TO OBEY COURT ORDERS (ECF NO. 24)
Plaintiff Guillermo Trujillo Cruz ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action brought pursuant to 42 U.S.C. § 1983.
The Court originally granted Plaintiff's motion to proceed in forma pauperis. (ECF No. 14.) On January 16, 2019, Defendant filed a motion for an order revoking Plaintiff's in forma pauperis status due to his accumulation of three "strikes" under 28 U.S.C. § 1915(g) (ECF No. 22.)
On September 4, 2019, the Court adopted findings and recommendations issued by the undersigned recommending that Defendant's motion for an order revoking Plaintiff's in forma pauperis status be granted and finding that Plaintiff is subject to the three-strikes bar under 28 U.S.C. § 1915(g) and has not met the imminent danger exception to that provision. (ECF No. 37.)
The Court also vacated its prior order granting Plaintiff's application to proceed in forma pauperis and ordered that, within forty-five days of service of the order adopting the findings and recommendations, Plaintiff shall pay the $400.00 filing fee to proceed with this action. (Id.) The Court warned that Plaintiff's action would be dismissed if he failed to pay the filing fee within the specified time. (Id.)
It has now been more than forty-five days since Plaintiff was served with the order adopting the findings and recommendations, and Plaintiff has failed to pay the $400.00 filing fee necessary to proceed with this action.
"Parties filing actions...are required to pay a filing fee." Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "An action may proceed despite failure to pay the filing fees only if the party is granted IFP status." Id.
Here, the Court has found that Plaintiff is not entitled to in forma pauperis status; accordingly, he must pay the filing fee. The Court ordered Plaintiff to pay the filing fee within 45 days, but he failed to respond to the Court's order by paying the filing fee or seeking an extension. Plaintiff's failure to pay the filing fee and failure to respond to a Court order justify dismissal of his case without prejudice. See e.g., Irby v. Warner, 609 Fed. Appx. 423 (9th Cir. 2015) (affirming district court's denial of pro se prisoner's request for in forma pauperis status and subsequent dismissal of his case without prejudice for failure to pay the filing fee); Hill v. Katavich, 2015 WL 7282873 at *1 (E.D. Cal. Nov. 18, 2015) (denying pro se civil rights plaintiff's motion for reconsideration of order determining that "dismissal was appropriate since Plaintiff was ineligible to proceed in forma pauperis and had failed to pay the filing fee."); Wagner v. Peppler, No. EDCV 07-1537-CJC (MLG), 2008 WL 4830022 at *2 (C.D. Cal. Nov. 5, 2008) (dismissing prisoner's action for failure to pay filing fees after Plaintiff ignored the court's order to show cause on the matter).
Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that:
1. Plaintiff's claims against Defendant be dismissed without prejudice for failure to pay the filing fee and for failure to obey Court orders; and
2. The Clerk of Court be instructed to close this case.
These findings and recommendations will be submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)91). Within twenty-one (21) days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. the document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objection within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 20140 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: October 30 , 2019
/s/_________
UNITED STATES MAGISTRATE JUDGE