Fierros v. McAleenan ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 ROBERTO OCHOA FIERROS, Case No. 1:19-cv-01515-NONE-SKO 7 Plaintiff, ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED 8 v. FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S 9 ALEJANDRO MAYORKAS, et al., ORDER AND FOR FAILURE TO 10 Defendants PROSECUTE (Doc. 25) 11 TWENTY-ONE (21) DAY DEADLINE 12 13 14 On October 25, 2019, Plaintiff Roberto Ochoa Fierros filed a complaint, seeking review of 15 the denial of his application for adjustment of status pursuant to § 245 of the Immigration and 16 Nationality Act, 8 U.S.C. § 1255. (Doc. 1.) 17 On January 22, 2020, Defendants Kevin K. McAleenan, the former Acting Secretary of the 18 Department of Homeland Security1, and Lynn Q. Feldman, field officer director for the Fresno 19 office of the United States Citizenship and Immigration Services, filed a motion to dismiss 20 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 10.) On August 11, 2021, the Court 21 granted the motion to dismiss, with leave to amend. (Doc. 25.) Plaintiff was granted thirty days 22 leave to file an amended complaint stating a cognizable claim for relief. (See id. at 9–10.) To date, no amended complaint has been filed. 23 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 24 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 25 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. 26 27 1 Alejandro Mayorkas, who was sworn in as Secretary of the Department of Homeland Security on February 2, 2021, was substituted as a defendant in this action in place of named Defendant McAleenan. See Doc. 25 at 1 n.1; Fed. R. 28 Civ. P. 25(d) (when public officer ceases to hold office, “[t]he officer’s successor is automatically substituted as a 1 “District courts have inherent power to control their dockets,” and in exercising that power, a court 2 may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los 3 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based 4 on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply with 5 local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 6 failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal 7 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 8 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 9 to comply with local rules). 10 Based on the foregoing, Plaintiff is ORDERED to show cause, within twenty-one (21) 11 days of the date of service of this order, why a recommendation should not issue for this action to be dismissed for Plaintiff’s failure comply with the Court’s August 11, 2021 order 12 by not filing an amended complaint within the specified period of time and for failure to 13 prosecute. Alternatively, within that same time period, Plaintiff may file an amended complaint 14 or a notice of voluntary dismissal. The Court further CAUTIONS Plaintiff that, if he fails to take 15 action within twenty-one (21) days of the date of service of this order, the Court will recommend 16 to the presiding district court judge that this action be dismissed, in its entirety. 17 Furthermore, the Scheduling Conference, currently set for September 30, 2021, is 18 CONTINUED to January 13, 2022, at 10:00 a.m. in Courtroom 7 (SKO) before Magistrate Judge 19 Sheila K. Oberto. The parties shall file their joint scheduling report seven (7) days prior to the 20 conference. 21 22 IT IS SO ORDERED. 23 Dated: September 23, 2021 /s/ Sheila K. Oberto . 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28