United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE
DUE TO PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S
ORDER, FAILURE TO PROSECUTE, AND FAILURE TO STATE A CLAIM
(DOCS. 1, 11, 20, 22, 23)
K. OBERTO . UNITED STATES MAGISTRATE JUDGE.
Michael Fries, 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 5, 2018, the
Court issued the First Screening Order finding that the
Complaint failed to state any cognizable claims and granting
leave for Plaintiff to file a first amended complaint within
twenty-one (21) days. (Doc. 11.) Plaintiff was warned in the
First Screening Order that failure to comply would result in
dismissal of this action for his failure to obey a court
order, failure to prosecute, and failure to state a
cognizable claim. (Id.)
of filing a first amended complaint, on January 2, 2019,
Plaintiff filed a motion for appointment of counsel. (Doc.
13.) This motion was denied on March 13, 2019, and Plaintiff
was granted Plaintiff another thirty days to file a first
amended complaint. (Doc. 14.) Instead of filing a first
amended complaint, on February 22, 2019, Plaintiff filed
objections to the order denying appointment of counsel. (Doc.
15.) Plaintiff's objections were construed as a motion
for reconsideration and were denied on March 13, 2019, by the
District Judge assigned to the case, and Plaintiff was
provided another thirty (30) days in which to file a first
amended complaint. (Doc. 16.) Instead of filing a first
amended complaint, on April 2, 2019, Plaintiff filed an
appeal of the denial of counsel. (Doc. 17.) On April 25,
2019, the Court issued an order noting that Plaintiff had
failed to file an amended complaint and had instead filed an
appeal, informed Plaintiff that the orders denying counsel
were not appealable, and granted Plaintiff one final
twenty-one (21) day extension of time to file an amended
complaint. (Doc. 20.) Plaintiff again failed to comply with
the Court's order.
31, 2019, the Ninth Circuit dismissed Plaintiff's appeal
for lack of jurisdiction. (Doc. 21.) On June 3, 2019, this
Court issued an order for Plaintiff to show cause, within
twenty-one (21) days, why this action should not be dismissed
because of his failure to comply with the Court's orders
by filing an amended complaint. (Doc. 22.) Alternatively,
that order gave Plaintiff twenty-one (21) days to file a
first amended complaint or a notice of voluntary dismissal.
(Id.) Instead of responding to the order to show
cause, or filing an amended complaint or notice of voluntary
dismissal, on June 24, 2019, Plaintiff filed a motion seeking
yet another extension of time to file a first amended
complaint. (Doc. 23.)
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
on Plaintiff's failure to comply with the First Screening
Order and OSC, there is no alternative but to dismiss the
action for Plaintiff's failure to obey the Court orders,
failure to prosecute, and failure to state a cognizable
claim. In Plaintiff's latest motion, he states this is
his first request for an extension of time to file an amended
pleading. (Doc. 23, p. 2.) However, as set forth above,
Plaintiff has had more than six months in which to file a
first amended complaint, and was repeatedly instructed by the
Court of the requirement to do so. (See Docs. 11,
14, 16, 20, 22.) Plaintiff appears to have engaged in efforts
to game the deadlines imposed in this action-without
attempting to comply with the Court's orders. Plaintiff
has submitted no evidence to justify a further extension of
time and the Court finds none.
Plaintiff's motion for an extension of time to file a
first amended complaint, filed on June 24, 2019, (Doc. 23),
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.” Failure to
file objections within the specified time may result in the