Vargas v. CDCR et al

Filing 6

FINDINGS and RECOMMENDATION to dismiss with prejudice for Plaintiff's failure to comply with the court's order and failure to prosecute this action signed by Magistrate Judge Jennifer L. Thurston on 2/1/2018. Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/28/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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

Defendants.

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1:17-cv-01412-JLT (PC)

FRANCISCO JAVIER VARGAS,

(Docs. 4, 5)

v.
CDCR, et al.,

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21-DAY DEADLINE

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CLERK TO ASSIGN A DISTRICT JUDGE

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On October 25, 2017, the Court ordered Plaintiff to submit an application to proceed in

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forma pauperis or pay the filing fee within 45 days -- which enclosed the proper form for

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Plaintiff’s use. (Doc. 4.) More than 45 days passed without Plaintiff filing an application to

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proceed in forma pauperis, to pay the filing fee, or to respond to the Court’s Order in any manner.

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Thus, on December 19, 2017, the Court ordered Plaintiff to show cause why this action should

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not be dismissed for his failure to comply with the October 25, 2017 order. (Doc. 5.) Plaintiff

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has failed to file a response.

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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 both the order to file

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an application to proceed in forma pauperis or the filing fee as well as the OSC, there is no

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alternative but to dismiss the action for Plaintiff’s failure to respond to/obey a court order and for

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failure to prosecute.

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Accordingly, the Court RECOMMENDS that this action be dismissed, with prejudice,

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for Plaintiff's failure both to obey a court order and to prosecute this action. 42 U.S.C. § 1997e

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(a). The Clerk of the Court is directed to assign a District Judge to this action.

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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 21

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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.
Dated:

February 1, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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