Bussiere v. Sherman

Filing 10

FINDINGS and RECOMMENDATION to Dismiss with Prejudice Based on Plaintiff's Failure to Comply with the Court's Order, Failure to Prosecute, and Failure to State a Claim, signed by Magistrate Judge Jennifer L. Thurston on 12/22/16. Referred to Judge Drozd; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,

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v.

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STU SHERMAN,

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Defendant.

1:16-cv-00899-DAD-JLT (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS WITH PREJUDICE BASED
ON PLAINTIFF'S FAILURE TO COMPLY
WITH THE COURT'S ORDER, FAILURE
TO PROSECUTE, AND FAILURE TO
STATE A CLAIM
(Docs. 8, 9)
30-DAY DEADLINE

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On September 26, 2016, the Court dismissed the Complaint because it failed to state any

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cognizable claims and granted Plaintiff leave to file an amended complaint within thirty days.

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(Doc. 8.) More than thirty days passed without Plaintiff filing an amended complaint or other

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response to the Court's Order. Thus, on November 10, 2016, the Court ordered Plaintiff to show

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cause why this action should not be dismissed (Doc. 9). The Court warned Plaintiff that his

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failure to respond to the Court’s order would result in dismissal of this action for his failure to

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comply. (Doc. 9.) More than 30 days have lapsed and Plaintiff has not responded.

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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). Based on Plaintiff=s failure to comply with or

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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

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based on Plaintiff's failure to obey a court order, failure to prosecute this action, and failure to

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state a claim.

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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:

December 22, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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