Mendoza v. Macy's Inc. ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RENEE C. MENDOZA, Case No. 1:19-cv-01156-DAD-SKO 9 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR 10 PLAINTIFF’S FAILURE TO COMPLY v. WITH THE COURT'S ORDER AND 11 FAILURE TO STATE A CLAIM MACY’S INC., 12 (Docs. 1, 4, 13) Defendant. 13 TWENTY-ONE (21) DAY DEADLINE 14 15 Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 (“Section 16 1983”) against Defendant Macy’s Inc. on August 23, 2019. (Doc. 1.) Plaintiff also filed an 17 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which was granted on 18 September 4, 2019. (Docs. 2, 3.) 19 On September 20, 2019, the undersigned issued a screening order finding that Plaintiff failed 20 to state any cognizable claims and granted Plaintiff twenty-one days leave to file an amended 21 complaint curing the pleading deficiencies identified in the order. (Doc. 4.) Plaintiff then requested 22 an extension of time to file her amended complaint, which the Court granted and extended the 23 deadline to November 22, 2019. (Docs. 5, 6.) Plaintiff failed to file an amended complaint by the 24 extended deadline. 25 On December 2, 2019, an order issued for Plaintiff to show cause (“OSC”) within fourteen 26 days why the action should not be dismissed for her failure to comply with the Court’s screening 27 order. (Doc. 7.) Plaintiff responded to the OSC by requesting an additional extension of time, which 28 the Court granted, allowing Plaintiff until January 27, 2020 to file an amended complaint. (Docs. 1 8, 9.) Plaintiff filed another request for an extension of time on January 31, 2020, which the Court 2 granted, allowing Plaintiff until April 6, 2020, to file her amended complaint. (Docs. 10, 12.) 3 Plaintiff failed to file an amended complaint by that deadline. 4 On May 11, 2020, the Court entered a second OSC, directing Plaintiff to show cause within 5 fourteen days why the action should not be dismissed for her failure to comply with the Court’s 6 orders. (Doc. 13.) Plaintiff was warned in both the screening order and the multiple OSCs that the 7 failure to comply with the Court's order would result in a recommendation to the presiding district 8 judge of the dismissal of this action. (Id. See also Docs. 4, 7.) Plaintiff has not yet filed any 9 response to the second OSC and the time to do so has passed. 10 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 11 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 12 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. See also 13 Local Rule 183(a). “District courts have inherent power to control their dockets,” and in exercising 14 that power, a court may impose sanctions, including dismissal of an action. Thompson v. Housing 15 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 16 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure 17 to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 18 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 19 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 20 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute 21 and to comply with local rules). 22 Based on Plaintiff’s failure to comply with the screening order and the most recent OSC, 23 there is no alternative but to dismiss the action for failure to respond to/obey a court order, failure 24 to prosecute, and failure to state a cognizable claim. 25 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 26 prejudice, for Plaintiff’s failure to obey a court order, failure to prosecute this action, and failure to 27 state a cognizable claim. 28 These Findings and Recommendation will be submitted to the United States District Judge 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 2 one (21) days after being served with these Findings and Recommendation, Plaintiff may file 3 written objections with the Court. The document should be captioned “Objections to Magistrate 4 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 5 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 6 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at her address listed 8 on the docket for this matter. 9 IT IS SO ORDERED. 10 Sheila K. Oberto 11 Dated: July 1, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28