Unreported / Non-Citable
Background
James Carl Kelly filed a civil action in the Eastern District of California against Governor Gavin Newsom and other defendants. The order does not describe his underlying claims, because it addresses only a procedural default. According to the court, Kelly was directed to tender the filing fee, did not do so, and did not ask for additional time.
On September 14, 2026, Magistrate Judge Jeremy D. Peterson ordered Kelly to show cause, within fourteen days, why the action should not be dismissed for failure to prosecute (ECF No. 9). That order noted the unpaid fee and the absence of any extension request, and it warned that a failure to respond would result in a recommendation of dismissal.
Kelly did not respond, and the deadline passed. On October 13, 2026, the magistrate judge issued an order and findings and recommendations. The court's docket entry shows that the matter was referred to United States District Judge Daniel J. Calabretta for review, with objections due within fourteen days. The court's findings rest on the record of noncompliance; the order makes no findings about why Kelly did not pay or respond.
The Court’s Holding
This is a recommendation, not a final judgment. Judge Peterson ordered the Clerk to assign a district judge and recommended that the action be dismissed without prejudice for failure to prosecute, for the reasons stated in the September 14 order, and that the Clerk be directed to close the case. No dismissal takes effect unless and until the district judge adopts the recommendation.
The magistrate judge relied on the court's inherent power to control its docket and to impose sanctions, including dismissal, citing Bautista v. Los Angeles County and Local Rule 110, along with Ninth Circuit decisions allowing dismissal for failure to prosecute or to obey court orders. He applied the five factors from Ferdik v. Bonzelet: the public interest in expeditious resolution, the court's need to manage its docket, the risk of prejudice to defendants, the policy favoring merits decisions, and the availability of less drastic alternatives.
He found that the first three factors supported dismissal, and he concluded that the earlier warning satisfied the less-drastic-alternatives requirement because Kelly had adequate notice that noncompliance could end the case. The order does not separately analyze the policy favoring merits decisions; it concludes that the balance of factors favors dismissal. Any party may file objections within fourteen days of service, with responses due fourteen days after objections are served, and failure to object may waive the right to appeal the district court's order.
Key Takeaways
- A magistrate judge's recommendation to dismiss for failure to prosecute is not itself a dismissal; the assigned district judge must decide whether to adopt it after the objection period.
- Ignoring a show-cause order, after failing to pay a directed filing fee or seek an extension, can be the basis for a recommendation of dismissal under the court's inherent power and Local Rule 110.
- In this order, a prior express warning that noncompliance would lead to a dismissal recommendation was treated as satisfying the less-drastic-alternatives factor.
- The recommended dismissal is without prejudice, but the order does not address whether a new action would be timely or whether the fee obligation would remain, so those questions stay open.
- Parties have fourteen days after service to file objections, and missing that deadline may waive the right to appeal the district court's order.
Why It Matters
The order is a routine application of the Ninth Circuit's familiar dismissal factors in a case that stalled at the filing-fee stage. It is an unreported magistrate judge recommendation and carries little precedential weight. Its value is as an example of how the Eastern District sequences a show-cause order, a warning, and a recommendation before a case is dismissed.
Much remains open. Kelly may still file objections within the period, which could lead the district judge to decline to adopt the recommendation, and the court has not addressed any explanation for his silence. Nothing in the order resolves the merits of his claims, and the court did not decide whether a refiled action would be time-barred. Litigants should note that missing a fee deadline and then ignoring a show-cause order can end a case without any merits ruling.