Julian De Medeiros v. James A. Yates, et al
Filing
84
ORDER DENYING Plaintiff's Request For An Extension; FINDINGS and RECOMMENDATIONS For Dismissal of Plaintiff's Complaint 73 , 83 ; Objections Due September 19, 2011, signed by Magistrate Judge Michael J. Seng on 8/24/11: Matter referred to Judge Ishii. (Hellings, J)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
JULIAN DE MEDEIROS,
Plaintiff,
10
11
12
13
1:05-cv-0397-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S
REQUEST FOR AN EXTENSION;
v.
FINDINGS AND RECOMMENDATION
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT
JAMES A. YATES, et al,
Defendants.
(ECF Nos. 73 and 83)
14
15
OBJECTIONS DUE SEPTEMBER 19,
2011
_____________________________/
16
Plaintiff Julian De Medeiros (“Plaintiff”) is a prisoner proceeding pro se in a civil
17
rights action pursuant to 42 U.S.C. § 1983.
18
Plaintiff initiated this action on March 25, 2005. (ECF No. 1.) Plaintiff filed a First
19
Amended Complaint on March 30, 2005. (ECF No. 4.) The Court screened the First
20
Amended Complaint and dismissed it with leave to amend on April 11, 2008. (ECF No.
21
10.) Plaintiff filed his Second Amended Complaint on April 14, 2009. (ECF No. 35.) The
22
Court screened it on February 3, 2011, and dismissed it for failure to state a claim, but
23
again gave Plaintiff leave to file an amended complaint. (Order, ECF No. 73.) Plaintiff
24
was to file his Third Amended Complaint by March 7, 2011. (Id.)
25
Plaintiff has instead filed several motions requesting an extension of time to file his
26
Third Amended Complaint. (ECF Nos. 74, 76, 77, 79, 81.) Four of Plaintiff’s requests
27
28
-1-
1
were granted and one was denied as moot. (ECF Nos. 78, 80, 82.) In its Order granting
2
Plaintiff’s penultimate request for an extension, the Court stated that “Absent new and
3
different circumstances constituting good cause, no further extensions should be
4
requested.” (ECF No. 80.) Pursuant to this Order, Plaintiff was to file his Third Amended
5
Complaint by July 25, 2011. (Id.)
6
On July 28, 2011, Plaintiff filed yet another Motion to Extend Time to File a Third
7
Amended Complaint. (Mot., ECF No. 83.) This is Plaintiff’s fifth request for an extension
8
of time to file his Third Amended Complaint. Plaintiff states that on July 19, 2011, he w
9
as placed in medical isolation for three to four weeks and, thus, left unable to complete
10
and submit his Third Amended Complaint. (Mot. at 1-2.) However, despite his medical
11
isolation, Plaintiff was able to, and did, prepare and file this Motion to Extend Time. The
12
effort and success spent in filing the Motion could and should have been devoted to filing
13
the Third Amended Complaint as ordered by the Court. Accordingly, and given the
14
inordinate number of extensions of time already granted to Plaintiff, the Court does not
15
find good cause for yet another extension.
16
In his current Motion to Extend Time, Plaintiff states an intent to proceed on his
17
Second Amended Complaint if he is not given time to file a Third Amended Complaint,
18
(Id. at 1.) However, the Court has already ruled that the Second Amended Complaint did
19
not contain any cognizable claims. Thus, the Court is left with nothing but Plaintiff’s
20
failure to follow the Court’s Order that he file a Third Amended Complaint by July 25,
21
2011.
22
Local Rule 110 provides that “failure of counsel or of a party to comply with these
23
Rules or with any order of the Court may be grounds for imposition by the Court of any
24
and all sanctions . . . within the inherent power of the Court.” District courts have the
25
inherent power to control their dockets and “in the exercise of that power, they may
26
impose sanctions including, where appropriate . . . dismissal of a case.” District courts
27
28
-2-
1
have the inherent power to control their dockets and “in the exercise of that power, they
2
may impose sanctions including, where appropriate . . . dismissal of a case.” Thompson
3
v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
4
prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,
5
or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-
6
61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of
7
complaint); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
8
failure to prosecute and failure to comply with local rules).
9
Plaintiff has not shown good cause for an extension of time to file a Third
10
Amended Complaint. Plaintiff cannot stand on his Second Amended Complaint since it
11
has been found to not state a claim upon which relief could be granted, and it has been
12
dismissed. Plaintiff has failed to file an amended complaint as ordered by the Court.
13
Accordingly, the Court,
14
1.
DENIES Plaintiff’s Motion to Extend Time to File an Amended Complaint
(ECF No. 83); and
15
2,
16
RECOMMENDS that this case be dismissed for failure to state a claim
upon which relief could be granted and for failure to obey a court order.
17
18
These Findings and Recommendation are submitted to the United States District
19
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Not
20
later than September 19, 2011, Plaintiff may file written objections with the Court and
21
serve a copy on all parties. Such a document should be captioned “Objections to
22
Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to
23
file objections within the specified time may waive the right to appeal the District Court’s
24
order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
25
IT IS SO ORDERED.
26
Dated:
ci4d6
August 24, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?