Berry v. Harrington et al

Filing 17

FINDINGS and RECOMMENDATIONS recommending 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 re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Sheila K. Oberto on 1/11/2017. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SPENCER E. BERRY,

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Plaintiff,
v.
HARRINGTON, et al.,
Defendants.

1:16-cv-00054-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS WITH PREJUDICE FOR
PLAINTIFF'S FAILURE TO COMPLY
WITH THE COURT'S ORDER AND
FAILURE TO STATE A CLAIM
(Docs. 1, 16)
THIRTY (30) DAY DEADLINE

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Plaintiff, Spencer E. Berry, is a former state prisoner proceeding pro se and in forma

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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On November 28, 2016, the

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Court dismissed the Complaint as it failed to state any cognizable claims and granted leave for

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Plaintiff to file a first amended complaint within thirty days. (Doc. 16.) More than thirty days

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has lapsed without Plaintiff filing an amended complaint or other response to the Court's Order.

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Plaintiff was warned that the failure to comply with the Court's order would result in dismissal of

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this action for his failure to obey a court order, failure to prosecute, and failure to state a

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cognizable claim. (Id.)

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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel, or

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of a party to comply with . . . any order of the Court may be grounds for the imposition by the

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Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110.

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“District courts have inherent power to control their dockets,” and in exercising that power, a

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court may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of
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Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice,

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based on a party’s failure to prosecute an action or failure to obey a court order, or failure to

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comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court

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order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to

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prosecute and to comply with local rules).

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Based on Plaintiff=s failure to comply with or otherwise respond to the order which

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dismissed the Complaint, there is no alternative but to dismiss the action for his failure to respond

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to/obey a court order, failure to prosecute, and failure to state a cognizable claim.
Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with

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prejudice, for Plaintiff's failure to obey a court order, to prosecute this action, and to state a

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cognizable claim.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
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Dated:

January 11, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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