Higgins v. Barnes, et al.

Filing 20

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/9/2013 DENYING plaintiff's 19 request to stay this action; and RECOMMENDING that this action be dismissed. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JONATHAN HIGGINS,

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Plaintiff,

No. 2:13-cv-0275 WBS EFB P

vs.
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BARNES, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1).

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On May 13, 2013, the court dismissed plaintiff’s complaint. The dismissal order

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explained the complaint’s deficiencies, gave plaintiff 30 days to file an amended complaint

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correcting those deficiencies, and warned plaintiff that failure to file an amended complaint

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would result in this action being dismissed. The time for acting has passed and despite an

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extension of time, plaintiff has not filed an amended complaint.

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Instead, plaintiff requests that this action be stayed while he pursues administrative

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remedies. Dckt. No. 19. Plaintiff’s request must be denied. A prisoner must exhaust available

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administrative remedies before filing any papers in federal court and is not entitled to a stay of
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judicial proceedings in order to exhaust. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.

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2006); McKinney v. Carey, 311 F.3d 1198, 1198 (9th Cir. 2002).

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Plaintiff has not complied with the order directing that he file an amended complaint. A

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party’s failure to comply with any order or with the Local Rules “may be grounds for imposition

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by the Court of any and all sanctions authorized by statute or Rule or within the inherent power

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of the Court.” E.D. Cal. Local Rule 110. The court may recommend that an action be dismissed

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with or without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in

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dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended

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complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,

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1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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Accordingly, it is hereby ORDERED that plaintiff’s request to stay this action (Dckt. No.
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Further, it is hereby RECOMMENDED that this action be dismissed. Fed. R. Civ. P.
41(b); E.D. Cal. Local Rule 110.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 9, 2013.

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