Bonuelos v. Hanford Elementary School District ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 ROBERT BONUELOS, Case No. 1:19-cv-01764-NONE-SKO 7 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR 8 PLAINTIFF’S FAILURE TO OBEY v. COURT ORDER AND FAILURE TO 9 PROSECUTE HANFORD ELEMENTARY SCHOOL 10 (Docs. 5, 9) DISTRICT, et al., 11 Defendants. TWENTY-ONE (21) DAY DEADLINE 12 13 14 On December 19, 2019, Plaintiff, proceeding pro se, filed the complaint in this case against 15 Defendants. (Doc. 1.) Plaintiff also filed a motion to proceed in forma pauperis, which was granted 16 on December 23, 2019. (Docs. 2, 3.) 17 On March 30, 2020, the Court issued a screening order finding that Plaintiff’s complaint 18 failed to state any cognizable claims and granting leave until April 27, 2020, for Plaintiff to file an 19 amended complaint. (Doc. 5.) Plaintiff filed a request for an extension of time to file his amended 20 complaint, and the Court granted the request and allowed Plaintiff until May 25, 2020, to file his 21 amended complaint. (Docs. 7, 8.) Plaintiff failed to file an amended complaint or otherwise respond 22 to the Court’s screening order. 23 On July 1, 2020, an order issued for Plaintiff to show cause (“OSC”) within twenty-one days 24 why the action should not be dismissed for his failure to comply with the Court’s November 7, 2018 25 screening order. (Doc. 9.) When served at Plaintiff’s address of record, the OSC was returned as 26 undeliverable on July 10, 2020. Local Rule 183(b) provides that: 27 A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria 28 persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails 1 current address, the Court may dismiss the action without prejudice for failure to 2 prosecute. 3 L.R. 183(b). Although more than sixty-three days have passed since the OSC was returned as 4 undeliverable, Plaintiff has neither responded to the OSC, nor contacted the Court to request an 5 extension or to otherwise explain his lack of compliance with the OSC. 6 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 7 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 8 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. See also 9 Local Rule 183(a). ““District courts have inherent power to control their dockets,” and in exercising 10 that power, a court may impose sanctions, including dismissal of an action. Thompson v. Housing 11 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 12 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure 13 to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) 14 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 15 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 16 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute 17 and to comply with local rules). 18 Based on Plaintiff’s failure to comply with, or otherwise respond to, the order dismissing his 19 complaint and his failure to keep his address updated, there is no alternative but to recommend that 20 the action be dismissed for failure to respond to/obey a court order and failure to prosecute. 21 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 22 prejudice, for Plaintiff’s failure to obey the Court’s order and failure to prosecute this action. 23 These Findings and Recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 25 one (21) days after being served with these Findings and Recommendations, Plaintiff may file 26 written objections with the Court. The document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 28 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3 Sheila K. Oberto 4 Dated: September 23, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28