Miessek v. Federal Government ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TONNE L. MIESSEK, Case No. 1:22-cv-01021-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 FEDERAL GOVERNMENT, 13 (Doc. 3) Defendant. 14 TWENTY-ONE (21) DAY DEADLINE 15 16 17 Plaintiff Tonne L. Miessek, proceeding pro se, filed this civil action on August 15, 2022. 18 (Doc. 1.) Plaintiff also filed an application to proceed without the prepayment of fees, but the form 19 application was not complete. (See Doc. 2.) The application indicated that Plaintiff received money 20 from disability or workers compensation payments, but it did not state the amount received and 21 what Plaintiff expects to continue to receive. (See id.) It was also unclear whether Plaintiff owns 22 any real estate, stocks, bonds, securities, other financial instruments, automobiles, or any other 23 thing of value. (See id.) 24 On August 18, 2022, the Court issued an order denying without prejudice Plaintiff’s 25 application to proceed without the prepayment of fees and directing Plaintiff to either file an 26 amended application, completed and signed, or pay the $402.00 filing fee for this action, within 27 thirty days. (Doc. 3.) Plaintiff was cautioned that the failure to comply with the Court’s order 28 would result in a recommendation that this action be dismissed. (See id.) More than thirty days 1 have passed, and Plaintiff has failed to file an amended application or to pay the filing fee. 2 Further, when served at Plaintiff’s address of record, the August 18, 2022, order was 3 returned as undeliverable on September 19, 2022. Local Rule 183(b) provides that: 4 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 5 persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff 6 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 7 to prosecute. 8 L.R. 183(b). Although more than sixty-three days have passed since the order was returned as 9 undeliverable, Plaintiff has not contacted the Court to provide their current address, request an 10 extension, or to otherwise explain their lack of compliance with the order. 11 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 12 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 13 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District 14 courts have inherent power to control their dockets,” and in exercising that power, a court may 15 impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 16 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to 17 prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g. 18 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with 19 an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 20 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 21 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 22 Accordingly, Plaintiff is ORDERED to show cause within twenty-one (21) days of the 23 date of service of this order why the action should not be dismissed for Plaintiff’s failure to comply 24 with the Court’s order and Local Rules and failure to prosecute. Alternatively, within this same 25 time period, Plaintiff may pay the $402.00 filing fee for this action, file an amended application to 26 proceed without the prepayment of fees, or file a notice of voluntary dismissal. The Court further 27 CAUTIONS Plaintiff that, if they fail to take action within twenty-one (21) days of the date of 1 be dismissed, in its entirety. 2 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at their address listed 3 on the docket for this matter. 4 IT IS SO ORDERED. 5 6 Dated: November 29, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27