(PC) McDowell v. Atkinson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN DEWITT MCDOWELL, No. 1:20-cv-01036-ADA-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. ACTION FOR PLAINTIFF’S FAILURE TO 14 ATKINSON, et al., OBEY COURT ORDERS AND FAILURE TO PROSECUTE 15 Defendants. (ECF No. 81) 16 17 Plaintiff Jonathan Dewitt McDowell is proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 25, 2023, the Magistrate Judge issued findings and recommendations to dismiss 21 the action for Plaintiff’s failure to obey court orders and failure to prosecute. (ECF No. 81.) The 22 Magistrate Judge found Plaintiff had failed to file an opposition or statement of non-opposition to 23 Defendant Johnson’s motion for partial summary judgment and to Defendants’ motion to revoke 24 Plaintiff’s in forma pauperis status. (Id. at 3–6.) Therefore, the Magistrate Judge recommended 25 the action be dismissed without prejudice. (Id. at 6.) Plaintiff was to file any objections to the 26 findings within fourteen days of the date of service. (Id.) 27 On May 18, 2023, Plaintiff untimely filed a document titled “Response to the Courts 1 recommendations. (ECF No. 82.)1 On May 30, 2023, Defendants filed a response to Plaintiff’s 2 objections. (ECF No. 83.) 3 In his objections, Plaintiff objects to the dismissal of his case and to Defendants’ motion 4 to revoke his IFP status. (ECF No. 82.) Plaintiff states he has had “mail issues” and was 5 mistakenly mailing documents and correspondence incorrectly. Plaintiff requested one business 6 week to file all necessary documents to continue his action. (Id.) Defendants replied, arguing 7 Plaintiff’s pro se status may not be invoked in this manner, as the Court warned Plaintiff of the 8 consequences of failing to obey its orders. (ECF No. 83.) 9 Despite their untimely nature, Plaintiff’s objections are unpersuasive. Over the past four 10 months, Plaintiff has not filed any further documentation with the Court, and Plaintiff has not 11 properly objected to Defendant Johnson’s motion for partial summary judgment. See Docket. No 12 longer incarcerated, Plaintiff chose to “entrust [his filings] to the vagaries of the mail and the 13 clerk’s process for stamping incoming papers.” Houston, 487 U.S. at 271. Plaintiff did not 14 “personally deliver notice at the last moment” or provide evidence of monitoring his missing 15 filings demonstrative of “excusable neglect.” Id. While pro se litigants are not held to the same 16 standard as attorneys, pro se litigants are “expected to abide by the rules of the court in which 17 [they] litigate[].” Carter v. Comm’r, 784 F.2d 1006, 1008 (9th Cir. 1986). 18 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 19 de novo review of this case. Having carefully reviewed the file, including Plaintiff’s untimely 20 objections, the Court finds the findings and recommendations to be supported by the record and 21 proper analysis. 22 /// 23 /// 24 /// 25 1 The objections are untimely. Plaintiff is not incarcerated; thus, the mailbox rule is no longer applicable to this 26 action. See Houston v. Lack, 487 U.S. 266, 270–71 (1988) (emphasizing the applicability of the prison mailbox rule to incarcerated pro se litigants due to their lack of control over and lack of ability to monitor whether their filings are 27 sufficiently and timely mailed) ; see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“the Houston mailbox rule applies to § 1983 suits filed by pro se prisoners.”). Plaintiff dated his filing May 13, 2023, and the 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued April 25, 2023 (ECF No. 81), are 3 ADOPTED in full; 4 2. This action is DISMISSED without prejudice; and 5 3. The Clerk of the Court is directed to terminate all pending motions and to close this 6 case. 4 8 g | SO ORDERED. 10 Dated: _ September 5, 2023 UNITED fTATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28