Weith v. Newsom ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAN ALEC WEITH, Case No. 1:22-cv-01256-JLT-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR PLAINTIFF’S 11 v. FAILURE TO OBEY COURT ORDERS AND LOCAL RULES AND FAILURE TO PROSECUTE 12 GOVERNOR GAVIN NEWSOM, (Doc. 4) 13 et al. TWENTY-ONE (21) DAY DEADLINE 14 Defendants. 15 16 17 Plaintiff Jan Alec Weith, proceeding pro se, filed this civil action on September 30, 2022. 18 (Doc. 1.) Plaintiff also filed an application to proceed without the prepayment of fees, but the form 19 application was not complete, as it contained several deficiencies and unintelligible handwriting. 20 (Doc. 2.) 21 On October 6, 2022, the Court issued an order denying without prejudice Plaintiff’s 22 application to proceed without the prepayment of fees and directing Plaintiff to either file an 23 amended application, completed and signed, or pay the $402 filing fee for this action within twenty- 24 one days. (Doc. 3.) Plaintiff was cautioned that the failure to comply with the Court’s order would 25 result in a recommendation that this action be dismissed. (Id.) When served at Plaintiff’s address 26 of record, the October 6, 2022, order was returned as undeliverable on October 17, 2022. (See 27 Docket.) More than twenty-one days passed, and Plaintiff failed to file an amended application or 28 to pay the filing fee. (Id.) 1 On December 29, 2022, an order issued for Plaintiff to show cause (“OSC”) within twenty- 2 one days why the action should not be dismissed for his failure to comply with the Court’s October 3 6, 2022, order and the local rules and for his failure to prosecute. (Doc. 4.) Local Rule 183(b) 4 provides that: 5 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 6 persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter 7 of a current address, the Court may dismiss the action without prejudice for failure 8 to prosecute. 9 E.D. Cal. L.R. 183(b). More than sixty-three days have passed since the Court’s October 6, 2022, 10 order was returned as undeliverable. Plaintiff has neither responded to that order or the OSC, nor 11 has he contacted the Court to request an extension, or to otherwise explain his lack of compliance 12 with both orders. 13 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide that “[f]ailure of counsel 14 or of a party to comply with . . . any order of the Court may be grounds for the imposition by the 15 Court of any and all sanctions . . . within the inherent power of the Court.” E.D. Cal. L.R. 110; see 16 also E.D. Cal. L.R. 183(a). “District courts have inherent power to control their dockets,” and in 17 exercising that power, a court may impose sanctions, including dismissal of an action. Thompson 18 v. Hous. Authority of L.A., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 19 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure 20 to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) 21 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 22 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 23 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 24 to comply with local rules). 25 Based on Plaintiff’s failure to comply with, or otherwise respond to, the Court’s October 6, 26 2022 order, the OSC, and his failure to keep his address updated, there is no alternative but to 27 recommend that the action be dismissed for failure to obey court orders, local court rules, and 1 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 2 prejudice, for Plaintiff’s failure to obey the Court’s orders and local rules and the failure to 3 prosecute this action. 4 These Findings and Recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 6 one (21) days after being served with these Findings and Recommendations, Plaintiff may file 7 written objections with the Court. The document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 9 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 10 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. 12 13 Dated: January 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27