(PC)Facundo v. Hill ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOE FACUNDO, Case No. 1:22-cv-00285-SKO (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO OBEY COURT ORDERS 14 HILL, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Joe Facundo is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On March 1, 2023, the Court issued its First Screening Order. (Doc. 9.) The Court 21 determined Plaintiff’s complaint plausibly alleged an Eighth Amendment failure to protect 22 violation against Defendant Hill. However, Plaintiff’s complaint failed to state any other 23 cognizable claim against any other named Defendant. (Id. at 4-6.) The Court directed Plaintiff to 24 elect one of the following options: (1) file a first amended complaint curing the deficiencies 25 identified in the order; or (2) file a notice indicating he does not wish to file a first amended 26 complaint and instead wishes to proceed only on his Eighth Amendment failure to protect claim 27 against Defendant Hill; or (3) file a notice of voluntary dismissal, within 21 days of service of the order. (Id. at 7.) 1 Although more than 21 days have passed, Plaintiff has failed to respond to the Court’s 2 First Screening Order in any way. 3 II. DISCUSSION AND ORDER 4 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 5 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 6 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 7 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 8 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 9 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 10 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 11 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 12 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 13 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 14 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 15 Plaintiff has failed to obey the Court’s March 1, 2023 screening order requiring him to file 16 a first amended complaint, or a notice that he wishes to proceed on the claim found cognizable by 17 the Court, or a notice of voluntary dismissal. 18 Accordingly, the Court ORDERS Plaintiff to show cause in writing, within 21 days of 19 the date of service of this order, why this action should not be dismissed for his failure to comply 20 with the Court’s order of March 1, 2023. Alternatively, within that same time, Plaintiff may file 21 either a first amended complaint, a notice electing to proceed on the Eighth Amendment failure to 22 protect claim against Defendant Hill, or a notice of voluntary dismissal. 23 WARNING: Failure to comply with this Order to Show Cause (OSC) will result in a 24 recommendation that this action be dismissed without prejudice for Plaintiff’s failure to 25 obey court orders and failure to prosecute. 26 IT IS SO ORDERED. 27 Dated: March 31, 2023 /s/ Sheila K. Oberto . 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27