(PC) Bettencourt v. Ballesteros et al, No. 1:2017cv01184 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be dismissed, with prejudice, for Plaintiff's failure to obey a court order, to prosecute this action, and to state a cognizable claim re 1 Prisoner Civil Rights Complaint filed by Gary Ray Bettencourt ; referred to Judge Ishii; new case number 1:17-cv-01184-AWI-SKO (PC), signed by Magistrate Judge Sheila K. Oberto on 05/08/2018. Objections to F&R due by 6/1/2018(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDERS AND FAILURE TO STATE A CLAIM Plaintiff, 11 12 1:17-cv-01184-SKO (PC) GARY RAY BETTENCOURT, v. BALLESTEROS, et al., 13 (Docs. 3, 7, 8, 10) Defendants. 14 TWENTY-ONE (21) DAY DEADLINE 15 CLERK TO ASSIGN A DISTRICT JUDGE 16 17 Plaintiff, Gary Ray Bettencourt, is a state prisoner proceeding pro se and in forma 18 pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On December 13, 2017, the 19 Court issued an order finding that Plaintiff failed to state any cognizable claims, dismissing the 20 Complaint, and granting Plaintiff leave to file a first amended complaint. (Doc. 8.) Although 21 more than the allowed time has passed, Plaintiff has not filed a first amended complaint or 22 otherwise responded to the Court’s screening order. 23 On February 6, 2018, an order issued for Plaintiff to show cause (“the OSC”) why the 24 action should not be dismissed for Plaintiff’s failure to comply with the court’s orders and for 25 failure to state a claim. (Doc. 10.) The order also noted that Plaintiff had failed to respond to 26 orders dated August 29, 2017, (Doc. 3), and October 16, 2017, (Doc. 7),1 by indicating whether 27 1 28 On February 1, 2018, a third order issued for Plaintiff to indicate his consent of declination to magistrate judge jurisdiction (see Doc. 9), but the time for Plaintiff’s response to that order had not lapsed when the OSC issued. 1 1 he consents to magistrate judge jurisdiction and filing the form provided in those orders. Instead 2 of filing a response to the OSC, on February 20, 2018, Plaintiff filed a notice of appeal which the 3 Ninth Circuit Court of Appeals dismissed for lack of jurisdiction. (Docs. 11, 14, 15.) Following dismissal of Plaintiff’s appeal, on May 4, 2018, Plaintiff filed a document titled 4 5 “Motion in Compliance to the Magistrate Order.” (Doc. 16.) Plaintiff contends the Clerk’s 6 Office erred by not transmitting final orders in this case to the Ninth Circuit. Plaintiff contends 7 that this Court did not thoroughly review Plaintiff’s original complaint in this action. Plaintiff 8 also contends that other magistrate judges have not thoroughly reviewed his pleadings in a 9 number of other actions which he lists. Ultimately, Plaintiff requests that he either be allowed to 10 proceed on the original complaint in this action, or that a final order issue upon which he can file 11 an appeal. For the reasons discussed in the order that screened the Complaint and granted Plaintiff 12 13 14 15 leave to file an amended complaint, (Doc. 8), Plaintiff has not stated a cognizable claim and should not be allowed to proceed on his original complaint. Further, despite having extended opportunity to file an amended complaint, Plaintiff has not done so. The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 16 17 18 19 20 21 22 of a party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District courts have inherent power to control their dockets,” and in exercising that power, a court may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 23 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 24 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 25 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 26 prosecute and to comply with local rules). 27 // 28 2 1 Despite having been provided an opportunity to file a first amended complaint, Plaintiff 2 has chosen not to file a first amended complaint. Plaintiff has not stated a cognizable claim upon 3 which he may proceed in this action. Nor has Plaintiff responded to the three orders requiring his 4 consent or declination to magistrate judge jurisdiction. (See Docs. 3, 7, 9.) Thus, this action 5 should be dismissed for Plaintiff’s failure to comply with this Court’s orders, failure to prosecute, 6 and failure to state a cognizable claim, Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 7 8 prejudice, for Plaintiff’s failure to obey a court order, to prosecute this action, and to state a 9 cognizable claim. 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 12 twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff 13 may file written objections with the Court. The document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 17 Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: May 8, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3 .

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