United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE
FOR PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S
ORDERS AND FAILURE TO STATE A CLAIM (DOCS. 3, 7, 8, 10)
TWENTY-ONE (21) DAY DEADLINE CLERK TO ASSIGN A DISTRICT
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Gary Ray Bettencourt, is a state prisoner proceeding pro
se and in forma pauperis with a civil rights
action pursuant to 42 U.S.C. § 1983. On December 13,
2017, the Court issued an order finding that Plaintiff failed
to state any cognizable claims, dismissing the Complaint, and
granting Plaintiff leave to file a first amended complaint.
(Doc. 8.) Although more than the allowed time has passed,
Plaintiff has not filed a first amended complaint or
otherwise responded to the Court's screening order.
February 6, 2018, an order issued for Plaintiff to show cause
(“the OSC”) why the action should not be
dismissed for Plaintiff's failure to comply with the
court's orders and for failure to state a claim. (Doc.
10.) The order also noted that Plaintiff had failed to
respond to orders dated August 29, 2017, (Doc. 3), and
October 16, 2017, (Doc. 7),  by indicating whether he consents
to magistrate judge jurisdiction and filing the form provided
in those orders. Instead of filing a response to the OSC, on
February 20, 2018, Plaintiff filed a notice of appeal which
the Ninth Circuit Court of Appeals dismissed for lack of
jurisdiction. (Docs. 11, 14, 15.)
dismissal of Plaintiff's appeal, on May 4, 2018,
Plaintiff filed a document titled “Motion in Compliance
to the Magistrate Order.” (Doc. 16.) Plaintiff contends
the Clerk's Office erred by not transmitting final orders
in this case to the Ninth Circuit. Plaintiff contends that
this Court did not thoroughly review Plaintiff's original
complaint in this action. Plaintiff also contends that other
magistrate judges have not thoroughly reviewed his pleadings
in a number of other actions which he lists. Ultimately,
Plaintiff requests that he either be allowed to proceed on
the original complaint in this action, or that a final order
issue upon which he can file an appeal.
reasons discussed in the order that screened the Complaint
and granted Plaintiff leave to file an amended complaint,
(Doc. 8), Plaintiff has not stated a cognizable claim and
should not be allowed to proceed on his original complaint.
Further, despite having extended opportunity to file an
amended complaint, Plaintiff has not done so.
Local Rules, corresponding with Fed.R.Civ.P. 11, provide,
“[f]ailure of counsel or of a party to comply with . .
. any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” Local Rule 110. “District
courts have inherent power to control their dockets, ”
and in exercising that power, a court may impose sanctions,
including dismissal of an action. Thompson v. Housing
Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.
1986). A court may dismiss an action with prejudice, based on
a party's failure to prosecute an action or failure to
obey a court order, or failure to comply with local rules.
See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
(9th Cir. 1992) (dismissal for failure to comply with an
order requiring amendment of complaint); Malone v. U.S.
Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with a court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for failure to prosecute and to comply with
having been provided an opportunity to file a first amended
complaint, Plaintiff has chosen not to file a first amended
complaint. Plaintiff has not stated a cognizable claim upon
which he may proceed in this action. Nor has Plaintiff
responded to the three orders requiring his consent or
declination to magistrate judge jurisdiction. (See
Docs. 3, 7, 9.) Thus, this action should be dismissed for
Plaintiff's failure to comply with this Court's
orders, failure to prosecute, and failure to state a
it is HEREBY RECOMMENDED that this action be dismissed, with
prejudice, for Plaintiff's failure to obey a court order,
to prosecute this action, and to state a cognizable claim.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1).
Within twenty-one (21) days after
being served with these Findings and Recommendations,
Plaintiff may file written objections with the Court. The
document should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections within the specified
time may result in the waiver of rights on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).
 On February 1, 2018, a third order
issued for Plaintiff to indicate his consent of declination
to magistrate judge jurisdiction (see Doc. 9), but
the time for Plaintiff's response to that order ...