Leo Evans v. Madera Police Department ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LEO EVANS, Case No. 1:19-cv-01803-DAD-SKO 9 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR 10 PLAINTIFF’S FAILURE TO COMPLY v. WITH THE COURT’S ORDERS AND 11 FAILURE TO PROSECUTE MADERA POLICE DEPARTMENT, et al., 12 (Docs. 8, 13) Defendants. 13 TWENTY-ONE (21) DAY DEADLINE 14 15 On December 30, 2019, Plaintiff Leo Evans filed the complaint in this case against 16 Defendants. (Doc. 1.) Plaintiff also filed a motion to proceed in forma pauperis, which was 17 granted on January 29, 2020, after Plaintiff submitted his prisoner trust account statement. (Docs. 18 3, 5, 6.) 19 On March 3, 2020, the Court issued an order finding that Plaintiff’s complaint failed to 20 state any cognizable claims and granting leave until March 24, 2020, for Plaintiff to file an 21 amended complaint. (Doc. 8.) Plaintiff failed to file an amended complaint by the deadline, and 22 on July 1, 2020, the Court ordered Plaintiff to show cause (“OSC”) why the action should not be 23 dismissed for his failure to file an amended complaint. (Doc. 10.) 24 Plaintiff filed a motion for a ninety-day extension of time on July 16, 2020, due to his 25 incarcerated status and the restrictions caused by the COVID-19 pandemic. (Doc. 11.) On July 26 23, 2020, the Court discharged the OSC, granted the motion, and ordered Plaintiff to file either his 27 amended complaint of a notice of voluntary dismissal by no later than October 14, 2020. (See 28 Doc. 12.) 1 On October 28, 2020, a second OSC issued for Plaintiff to show cause within twenty-one 2 days why the action should not be dismissed for his failure to comply with the Court’s screening 3 order and for failure to prosecute this case. (Doc. 13.) Plaintiff was warned in both the screening 4 order and the second OSCs that the failure to comply with the Court’s order would result in a 5 recommendation to the presiding district judge of the dismissal of this action. (Id. See also Doc. 6 8.) Plaintiff has not yet filed any response, and the time to do so has passed.1 7 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 8 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 9 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. See 10 also Local Rule 183(a). “District courts have inherent power to control their dockets,” and in 11 exercising that power, a court may impose sanctions, including dismissal of an action. Thompson 12 v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an 13 action, with prejudice, based on a party’s failure to prosecute an action or failure to obey a court 14 order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 15 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 16 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 17 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 18 failure to prosecute and to comply with local rules). 19 Based on Plaintiff’s failure to comply with, or otherwise respond to, the screening order 20 and the second OSC, there is no alternative but to dismiss the action for his failure to obey court 21 orders and failure to prosecute. 22 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 23 prejudice, for Plaintiff’s failure to obey court orders and failure to prosecute this action. 24 These Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 26 one (21) days after being served with these Findings and Recommendation, Plaintiff may file 27 written objections with the Court. The document should be captioned “Objections to Magistrate 28 1 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 2 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 3 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at his address listed 5 on the docket for this matter. 6 IT IS SO ORDERED. 7 Sheila K. Oberto 8 Dated: January 14, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28