Duarte v. VA Hospital ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRANCES G. DUARTE, Case No. 1:23-cv-00493-JLT-SKO 10 Plaintiff, ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED FOR 11 v. PLAINTIFF’S FAILURE TO OBEY COURT ORDER AND LOCAL RULES AND FAILURE TO 12 PROSECUTE VA HOSPITAL, 13 (Doc. 8) Defendant. 14 TWENTY-ONE (21) DAY DEADLINE 15 16 17 Plaintiff Frances G. Duarte, proceeding pro se and in forma pauperis, filed this civil action 18 on April 3, 2023. (Docs. 1–3.) The Court screened Plaintiff’s complaint and concluded that it 19 failed to state any cognizable claims. (Doc. 5.) The Court advised Plaintiff that she had three 20 options for how to proceed: Plaintiff could file (1) an amended complaint, which would be screened 21 in due course; (2) a statement that she wishes to stand on the initial complaint and have it reviewed 22 by the presiding district judge, in which case the Court would issue findings and recommendations 23 to the district judge consistent with its screening order; or (3) a notice of voluntary dismissal. (See 24 id. at 1.) 25 Plaintiff filed two documents in response to the Court’s screening order. (Docs. 6–7.) One 26 document indicated she wished to pursue the first option of filing a first amended complaint (Doc. 27 6), while the other indicated she wished to pursue the second option of standing on her initial 28 complaint (Doc. 7). (See Doc. 6 (“I Frances Duarte would like to go with No. 1 to make a first 1 amended complaint.”); see also Doc. 7 (“I Frances Duarte am going with #2 I wish to stand on my 2 complaint to VA Hospital. . . .”).) 3 On June 12, 2023, the Court issued a minute order in response to Plaintiff’s filings. (Doc. 4 8.) As it was unclear from Plaintiff's filings whether she intended to file an amended complaint or 5 stand on the original complaint, the Court ordered that, by no later than June 23, 2023, Plaintiff 6 shall file either (1) an amended complaint, which would be complete in itself without reference to 7 the prior or superseded pleading; or (2) a statement captioned “Notice to the Court” that Plaintiff 8 wished to stand on the initial complaint and have it reviewed by the presiding district judge. (Id.) 9 Plaintiff was cautioned that failure to comply with this order may result in dismissal of the action. 10 (Id.) Plaintiff failed to file anything by the deadline set by the Court. (See Docket.) 11 Further, when served at Plaintiff’s address of record, the June 12, 2023, order was returned 12 as undeliverable on June 23, 2023. (See Docket.) Local Rule 183(b) provides that: 13 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 14 persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff 15 fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure 16 to prosecute. 17 L.R. 183(b). Although more than sixty-three days have passed since the order was returned as 18 undeliverable, Plaintiff has not contacted the Court to provide her current address, request an 19 extension, or to otherwise explain her lack of compliance with the order. 20 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 21 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 22 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District 23 courts have inherent power to control their dockets,” and in exercising that power, a court may 24 impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 25 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to 26 prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g. 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with 1 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 2 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 3 Accordingly, Plaintiff is ORDERED to show cause within twenty-one (21) days of the 4 date of service of this order why the action should not be dismissed for Plaintiff’s failure to comply 5 with the Court’s order and Local Rules and failure to prosecute. Alternatively, within this same 6 time period, Plaintiff may file (1) an amended complaint, which shall be captioned "First Amended 7 Complaint," refer to case number 1:23-cv-00493-JLT-SKO, and be complete in itself without 8 reference to the prior or superseded pleading; (2) a statement, which shall be captioned "Notice to 9 the Court," that Plaintiff wants to stand on the initial complaint and have it reviewed by the 10 presiding district judge; or (3) a notice of voluntary dismissal. The Court further CAUTIONS 11 Plaintiff that, if she fails to take action within twenty-one (21) days of the date of service of this 12 order, the Court will recommend to a presiding district court judge that this action be dismissed in 13 its entirety. 14 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at her address listed 15 on the docket for this matter. 16 IT IS SO ORDERED. 17 18 Dated: September 1, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27