(PC) McDowell v. Atkinson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN DEWITT MCDOWELL, Case No. 1:20-cv-01036-DAD-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE IN WRITING WHY ACTION SHOULD NOT BE 13 v. DISMISSED FOR FAILURE TO OBEY COURT ORDER 14 ATKINSON, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Jonathan Dewitt McDowell is a former state prisoner1 proceeding pro se and in 18 forma pauperis in this civil rights action. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On October 17, 2022, this Court issued its Discovery and Scheduling Order. (Doc. 63.) In 21 relevant part, the Order set a January 17, 2023 deadline for the filing of an exhaustion motion. (Id. 22 at 1, 3.) 23 On January 17, 2023, Defendant Johnson filed a motion for partial summary judgment on 24 based on exhaustion. (Doc. 65.) The motion included a Rand2 warning, and Plaintiff was advised 25 1 Plaintiff was released on parole in July 2022. (See Docket Entries dated 7/12/2022 & 8/2/2022 noting 26 mail was returned to the Court marked “Undeliverable” “Paroled” “Refused” and “Return to Sender”). On August 4, 2022, Plaintiff filed a Notice of Change of Address, providing a residential street address in 27 Hemet, California. (See Doc. 58.) 28 2 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998). 1 he had 21 days within which to respond to Defendant Johnson’s motion. (Id. at 2-3.) 2 On February 8, 2023, Plaintiff filed a document titled “Motion for Extention of Time to 3 File Motion.” (Doc. 66.) Plaintiff sought a brief extension of time to “file discovery documents of 4 all above.” (Id. at 1.) Plaintiff stated he “know[s] the Court has issued time and dates for such 5 action to be filed but [Plaintiff] did not receive such documents in time to prepare all document.” 6 (Id.) Plaintiff asserted “all document will be ready,” if he is granted a “2 week” extension. (Id.) 7 On February 10, 2023, this Court issued its Order “Granting Plaintiff An Extension Of 8 Time Within Which To File Opposition To Defendant Johnson’s Motion For Partial Summary 9 Judgment On The Grounds Of Exhaustion.” (Doc. 67.) Plaintiff was granted an extension of time 10 of 14 days from the date of service of the order to file an opposition to the motion for partial 11 summary judgment. (Id. at 2.) More than 14 days have passed, and Plaintiff has failed to file an 12 opposition, statement of non-opposition, request a further extension of time, or otherwise respond 13 to the Court’s order. 14 II. DISCUSSION AND ORDER 15 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide that a 16 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 17 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 18 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 19 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 20 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 21 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 22 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 23 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 24 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 25 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 26 Plaintiff has failed to comply with this Court’s February 9, 2023 Order, and with this 27 Court’s Local Rules and the Federal Rules of Civil Procedure, by failing to file an opposition to 28 Defendant Johnson’s pending motion for partial summary judgment. 1 Accordingly, the Court ORDERS Plaintiff to show cause in writing, within 21 days of 2 the date of service of this order, why this action should not be dismissed for his failure to comply 3 with the Court’s February 9, 2023 Order. Alternatively, within that same time, Plaintiff may file 4 his opposition or statement of non-opposition to Defendant Johnson’s partial motion for summary 5 judgment on exhaustion grounds. 6 Failure to comply with this order will result in a recommendation that this action be 7 dismissed for failure to obey court orders. 8 IT IS SO ORDERED. 9 10 Dated: March 2, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28