Simmons v. Kernan

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/28/2019 WITHDRAWING 13 Findings and Recommendations and RECOMMENDING this action be dismissed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MELVIN JOSEPH SIMMONS, Jr.,

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Petitioner,

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No. 2:17-cv-2276-MCE-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

SCOTT KERNAN,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. On October 5, 2018, the court denied petitioner’s application for leave to

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proceed in forma pauperis and ordered petitioner to pay the filing fee. ECF No. 11. The court

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also dismissed the petition, identified its deficiencies, and granted petitioner leave to amend

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within thirty days. Id. The order warned petitioner that failure to comply would result in a

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recommendation that this action be dismissed. Id.

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On November 9, 2018, the court issued an order stating that the time for acting had passed

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and recommending that this action be dismissed because petitioner had neither filed an amended

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petition nor paid the filing fee. ECF No. 13. That same day, petitioner’s timely-filed amended

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petition appeared on the court’s docket.1 ECF No. 14. Therefore, the November 9, 2018

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Petitioner subsequently filed a second amended petition. ECF No. 15.
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findings and recommendations are withdrawn in light of petitioner’s filing of an amended

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petition.

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However, like the original petition, the amended petitions are largely incomprehensible

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and do not cure the deficiencies identified by the court. See ECF Nos. 14 & 15. Moreover,

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petitioner has yet to pay the filing fee for this action. Accordingly, dismissal of this action

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remains appropriate.

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

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

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inherent power of the Court.” E.D. Cal. L.R. 110. The court may dismiss an action with or

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

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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 the November 9, 2018 findings and
recommendations are withdrawn.

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Further, it is hereby RECOMMENDED that this action be DISMISSED.

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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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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

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

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
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2254 Cases in the United States District Courts (the district court must issue or deny a certificate

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of appealability when it enters a final order adverse to the applicant).

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DATED: January 28, 2019.

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