Humes v. Eliston et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/01/18 RECOMMENDING that this action be dismissed for failure to abide by an order of this court. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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No. 2:17-cv-2650 JAM AC P
Plaintiff,

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v.

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ELISTON, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a Sacramento County Jail inmate proceeding pro se with a civil rights

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complaint filed pursuant to 42 U.S.C. § 1983. This action is referred to the undersigned United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). By order

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filed December 28, 2017, plaintiff was directed to submit, within thirty days, an application to

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proceed in forma pauperis or to pay the full filing fee. See ECF No. 3. The court informed

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plaintiff that “failure to comply with this order will result in a recommendation that this action be

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dismissed.” Id. at 2.

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Three months later, on March 29, 2018, plaintiff filed a “Motion to Dismiss Filing Fees,”

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requesting that plaintiff be permitted to use his “pro se funds . . . for discovery, to hopefully build

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a worthy case to present to The Awesome District Court.” ECF No. 4. Shortly thereafter,

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plaintiff filed a “motion” requesting “$500.00 per month in pro se money to facilitate discovery

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and other advances” in this case. ECF No. 5. Both requests were denied by order filed May 11,

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2018. See ECF No. 7.

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The undersigned issued findings and recommendations on May 11, 2018, recommending

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the dismissal of this action due to plaintiff’s failure to comply with the court’s December 28,

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2017 order directing the submission of a motion to proceed in forma pauperis or payment of the

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filing fee. ECF No. 7. On May 31, 2018, in response to plaintiff’s objections, ECF No. 8, the

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court vacated the findings and recommendations and extended the compliance deadline for an

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additional sixty days, see ECF No. 9.

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The new deadline – July 30, 2018 – has expired without plaintiff’s compliance. Plaintiff’s

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failure to abide by an order of this court authorizes the dismissal of this action under both the

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Local Rules and Federal Rules of Civil Procedure. Local Rule 110 provides that failure to

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comply with court orders or rules “may be grounds for imposition of any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.” Similarly, the Federal

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Rules of Civil Procedure authorize dismissal of an action for failure to prosecute or to comply

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with the rules or orders of the court. See Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure
to abide by an order of this court. See Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after the filing date of these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: August 1, 2018

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