Domino v. California Correctional Health Care Services ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JUNE M. DOMINO, Ph.D., Case No. 1:19-cv-01790-NONE-SKO 7 Plaintiff, FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S FIRST AMENDED 8 v. COMPLAINT BE DISMISSED FOR FAILURE TO COMPLY WITH THE 9 CALIFORNIA CORRECTIONAL HEALTH COURT’S ORDERS AND FOR CARE SERVICES, et al., FAILURE TO PROSECUTE 10 Defendants (Docs. 11 & 36) 11 TWENTY-ONE (21) DAY DEADLINE 12 13 14 Plaintiff June M. Domino, Ph.D., proceeding pro se and in forma pauperis, filed a complaint 15 on December 23, 2019, against California Correctional Healthcare Services and “AFSCME Local 16 2620.” (Docs. 1–3.) In her original complaint, Plaintiff purported to allege claims for employment 17 discrimination under unspecified “Federal Statutes” and “Federal Treaties.” (Id.) She demanded 18 “$44 Million” in damages. (Doc. 1-1.) Plaintiff also filed an application to proceed in forma 19 pauperis, which was granted on December 27, 2019. 20 On March 3, 2020, the Complaint was screened, and the undersigned found that it failed to 21 state a cognizable federal claim. (Doc. 8.) Plaintiff was provided with the applicable legal standards 22 to determine if she would like to pursue her case and was granted twenty-one (21) days leave to file 23 an amended complaint curing the pleading deficiencies identified in the order. (Id.) Plaintiff filed her First Amended Complaint against Defendants California Correctional 24 Healthcare Services, AFSCME Local 2620, and “Does 1–50” on March 24, 2020. (Doc. 10.) On 25 May 8, 2020, the undersigned issued a second screening order finding that Plaintiff again failed to 26 state any cognizable claims and granting her “one final opportunity” to file an amended complaint 27 curing the identified pleading deficiencies within thirty days. (Doc. 11 (emphasis in original).) 28 1 After unsuccessfully appealing the second screening order to both the U.S. Court of Appeals 2 for the Ninth Circuit and the U.S. Supreme Court (see Docs. 30, 31, 34, 35), Plaintiff was granted 3 an extension of time until August 9, 2021, to file an amended complaint in compliance with the 4 screening order. (Doc. 35.) Plaintiff was advised that if she failed to file an amended complaint in 5 compliance with the second screening order, the undersigned would recommend to the district judge 6 that this action be dismissed for failure to prosecute and to obey court orders. (See id.) Plaintiff 7 failed to file an amended complaint or otherwise respond to the Court’s screening order by the 8 August 9, 2021, deadline. 9 On August 17, 2021, an order issued for Plaintiff to show cause (“OSC”) within twenty-one 10 days why the action should not be dismissed for her failure to comply with the Court’s second 11 screening order and for failure to prosecute this case. (Doc. 36.) Plaintiff was warned in both the 12 screening order and the OSC that the failure to comply with the Court’s orders would result in a 13 recommendation to the presiding district judge of the dismissal of this action. (Id. See also Doc. 14 11.) Plaintiff has not yet filed any response, and the time to do so has passed.1 15 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 16 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 17 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District courts have inherent power to control their dockets,” and in exercising that power, a court may 18 impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 19 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 20 failure to prosecute an action or failure to obey a court order, or failure to comply with local rules. 21 See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 22 with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 23 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 24 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 25 Based on Plaintiff’s failure to comply with, or otherwise respond to, the screening order and 26 the OSC, there is no alternative but to recommend dismissal of the action for her failure to obey 27 28 1 court orders and failure to prosecute. 2 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 3 prejudice, for Plaintiff’s failure to obey court orders and failure to prosecute. 4 These Findings and Recommendation will be submitted to the presiding United States 5 District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty-one 6 (21) days after being served with these Findings and Recommendation, Plaintiff may file written 7 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 9 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 10 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. 12 Dated: October 1, 2021 /s/ Sheila K. Oberto . 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28