Nettles v. Lopez

Filing 72

ORDER to SHOW CAUSE Why the Action Should Not be Dismissed for Plaintiff's Failure to Comply With the Court's Order signed by Magistrate Judge Jennifer L. Thurston on 7/21/2017. Show Cause Response due within twenty-one (21) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAMOUS D. NETTLES, Case No. 1:11-cv-01201-AWI-JLT (PC) 12 ORDER TO SHOW CAUSE WHY THE ACTION SHOULD NOT BE DISMISSED FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER 13 Plaintiff, v. 14 LOPEZ, (Docs. 67, 70) 15 Defendant. 21-DAY DEADLINE 16 17 Plaintiff filed this action as a petition for writ of habeas corpus under 28 U.S.C. § 2254. 18 (Doc. 1.) The Court granted the respondent’s motion to dismiss and Plaintiff appealed. On July 19 26, 2016, the Ninth Circuit Court of Appeals agreed with this Court that this action cannot proceed 20 as a petition for writ of habeas corpus because success of the merits would not necessarily impact 21 the length of the petitioner’s sentence. (Doc. 53.) However, the Court reversed the judgment and 22 remanded the matter to allow it to be re-characterized as an action under 42. U.S.C. § 1983, if after 23 advice of the risks and benefits, Plaintiff wished to proceed in that manner. (Id.) 24 The Court provided Plaintiff this advice and he chose to have the action re-characterized 25 under § 1983. (Docs. 55, 62, 64.) On May 5, 2017, the Court issued an order dismissing the 26 action with leave to amend which provided the pleading requirements and legal standards that 27 appeared most applicable based on the factual allegations gleaned from Plaintiff’s petition under § 28 2254. (Doc. 67.) Plaintiff requested an extension of time to file an amended complaint and was 1 granted 30 days. (Docs. 68, 69, 70.) More than 30 days have passed and Plaintiff has not filed an 2 amended complaint or otherwise responded to the Court’s Order. 3 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 4 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 5 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. 6 “District courts have inherent power to control their dockets,” and in exercising that power, a court 7 may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los 8 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based 9 on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply with 10 local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 11 failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal 12 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 13 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 14 15 16 17 18 19 to comply with local rules). Accordingly, Plaintiff is ORDERED to show cause within 21 days of the date of service of this order why the action should not be dismissed for both his failure to state a claim under § 1983 and to comply with the Court’s order; alternatively, within that same time, Plaintiff may file an amended complaint, or a notice of voluntary dismissal. IT IS SO ORDERED. 20 21 Dated: July 21, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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