Nettles v. Lopez

Filing 73

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, with prejudice, for Plaintiff's failure both to obey a court order and to prosecute this action ;referred to Judge Ishii, signed by Magistrate Judge Jennifer L. Thurston on 08/30/17. Objections to F&R due by 9/25/2017(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 DAMOUS D. NETTLES,

Case No. 1:11-cv-01201-AWI-JLT (PC)

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FINDINGS AND RECOMMENDATION TO
DISMISS WITH PREJUDICE FOR
PLAINTIFF’S FAILURE TO COMPLY
WITH THE COURT’S ORDER

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Plaintiff,
v.

14 LOPEZ,
(Docs. 67, 70, 72)
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Defendant.
21-DAY DEADLINE

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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.)
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The Court provided Plaintiff this information and he chose to have the action re-

25 characterized under § 1983. (Docs. 55, 62, 64.) On May 5, 2017, the Court issued an order
26 dismissing the action with leave to amend which provided the pleading requirements and legal
27 standards that appeared most applicable based on the factual allegations gleaned from Plaintiff’s
28 petition under § 2254. (Doc. 67.) Plaintiff requested and received a 30 day extension of time to

1 file an amended complaint. (Docs. 68, 69, 70.) More than 30 days passed without Plaintiff filing
2 an amended complaint or other response to the Court’s Order. Thus, on July 21, 2017, the Court
3 ordered Plaintiff to show cause within 21 days why this action should not be dismissed for his
4 failure to comply with the Court’s order or to file an amended complaint or notice of voluntary
5 dismissal within that same deadline. (Doc. 72.) More than a month has passed without Plaintiff
6 filing any response to the order to show cause.
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As stated in the order to show cause, the Local Rules, corresponding with Fed. R. Civ. P.

8 11, provide, “[f]ailure of counsel, or of a party to comply with . . . any order of the Court may be
9 grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of
10 the Court.” Local Rule 110. “District courts have inherent power to control their dockets,” and in
11 exercising that power, a court may impose sanctions, including dismissal of an action. Thompson
12 v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an
13 action with prejudice, based on a party’s failure to prosecute an action or failure to obey a court
14 order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
15 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);
16 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply
17 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
18 failure to prosecute and to comply with local rules). Based on Plaintiff’s failure to comply with or
19 otherwise respond to the OSC, there is no alternative but to dismiss the action.
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Accordingly, the Court RECOMMENDS that this action be dismissed, with prejudice, for

21 Plaintiff's failure both to obey a court order and to prosecute this action, 42 U.S.C. § 1997e (a).
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These Findings and Recommendations will be submitted to the United States District

23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21
24 days after being served with these Findings and Recommendations, Plaintiff may file written
25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
26 Findings and Recommendations.”
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Plaintiff is advised that failure to file objections within the specified time may result in the

2 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
3 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:

August 30, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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