United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
was formerly housed at the Rio Cosumnes Correctional Center
and the El Dorado County Jail, but recently filed a change of
address reflecting his transfer to the Sacramento County
Jail. As previously noted, plaintiff was scheduled for
judgment and sentencing on October 27, 2017 (ECF No. 26), and
Sacramento County Superior Court records confirm that
plaintiff was sentenced on October 27, 2017. People v.
Robben, Case No. P17CRF0114 (Cal.) (Sacramento County).
In his notice of change of address, plaintiff states that
following sentencing, he has been retained in the Sacramento
County Jail, but could be returned to the Placerville Jail at
any time. All of his legal papers remain at the Placerville
Jail. (ECF No. 28 at 2.) On October 19, 2017, plaintiff filed
a motion to stay this action because he was housed in the El
Dorado County Jail and denied access to his legal materials.
(ECF No. 27.)
8, 2017, plaintiff's complaint was dismissed with leave
to amend. Since that order, plaintiff has been granted
multiple extensions of time in which to file an amended
complaint. On September 26, 2017, the court found that
plaintiff has not been diligently prosecuting the instant
action, filed November 14, 2016, based on his recent request
for medical records to amend the complaint to provide dates,
names, and procedures to file his amended complaint. Indeed,
Rule 11(c)(3) of the Federal Rules of Civil Procedure
provides for the imposition of sanctions where a litigant has
violated the following provisions:
(b) Representations to the Court. By
presenting to the court a pleading, written motion, or other
paper--whether by signing, filing, submitting, or later
advocating it--an attorney or unrepresented party certifies
that to the best of the person's knowledge, information,
and belief, formed after an inquiry reasonable under the
(1) it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal
contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law;
(3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically so identified,
are reasonably based on belief or a lack of information.
Civ. P. 11(b). Moreover, the court has authority to dismiss
an action for lack of prosecution under Federal Rule of Civil
Procedure 41(b). See Chambers v. NASCO, Inc., 501
U.S. 32, 44 (1991) (recognizing that a court “may act
sua sponte to dismiss a suit for failure to
prosecute”); Hells Canyon Preservation Council v.
U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005)
(stating that courts may dismiss an action pursuant to
Federal Rule of Civil Procedure 41(b) sua sponte for
a plaintiff's failure to prosecute or comply with the
rules of civil procedure or the court's orders);
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(per curiam) (“Failure to follow a district
court's local rules is a proper ground for
dismissal”); Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule
of Civil Procedure 41(b), the district court may dismiss an
action for failure to comply with any order of the
court”); Thompson v. Housing Auth. of City of
L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per
curiam) (stating that district courts have inherent
power to control their dockets and may impose sanctions
including dismissal or default).
other hand, since June 8, 2017, plaintiff has been
transferred three times, and does not have access to his
legal materials while housed at the Sacramento County Jail.
Although plaintiff has now been sentenced, he did not
indicate what his sentence was, and it is unclear whether
plaintiff will be returning to the El Dorado County Jail or
if he will be committed to state prison.
plaintiffs motion for stay is partially granted. This action
is stayed for 90 days. Ninety days from the date of this
order, plaintiff shall file a motion to lift the stay,
accompanied by his proposed amended complaint. If plaintiff
fails to comply with this order, the undersigned will
recommend that this action be dismissed without prejudice.
Plaintiff is cautioned that he must keep this court apprised
of his current address at all times. Local Rule 183(b).
Failure to do so will also result in the dismissal of this
IT IS HEREBY ORDERED that:
1. Plaintiffs motion for stay (ECF No. 27) is partially