(PC) Santos Valenzuela v. Smith et al, No. 1:2017cv01440 - Document 29 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to State a Cognizable Claim for Relief and Failure to Comply With a Court Order, signed by Magistrate Judge Stanley A. Boone on 11/13/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 SANTOS VALENZUELA, 8 9 10 11 Plaintiff, v. SMITH, et al., Defendants. 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01440-LJO-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF AND FAILURE COMPLY WITH A COURT ORDER [ECF No. 24] Plaintiff Santos Valenzuela is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 16 I. 17 BACKGROUND 18 On November 2, 2017, the Court found that Plaintiff’s complaint failed to state a cognizable 19 claim for relief and granted plaintiff thirty days to file an amended complaint addressing the 20 deficiencies identified by the Court. (ECF No. 15.) On November 28, 2017, at Plaintiff’s request, the 21 Court granted Plaintiff an additional thirty days to file an amended complaint. (ECF No. 16, 17.) 22 After more than thirty days passed, on January 4, 2018, the Court ordered Plaintiff to show cause why 23 the action should not be dismissed for failure to comply with a court order. (ECF No. 18.) Plaintiff 24 failed to respond to the Court’s order. 25 26 Therefore, on January 31, 2018, the Magistrate Judge issued Findings and Recommendations recommending that the action be dismissed for failure to comply with a court order. (ECF No. 19.) 27 28 1 1 The Findings and Recommendations were served on Plaintiff and contained notice that objections 2 were to be filed within fourteen days. 3 Recommendations were adopted in full on March 22, 2018, and the action was dismissed. (ECF No. 4 21.) Plaintiff did not file objections, and the Findings and On August 6, 2018, Plaintiff filed a motion for reconsideration. (ECF No. 23.) Plaintiff 5 6 requested the Court to reopen the action because he had been undergoing mental health treatment and 7 had been transferred to multiple different facilities and denied access to the court and his legal 8 materials. (ECF. No. 21.) As a result, Plaintiff claimed he was unable to respond to the Court’s 9 orders. (Id.) On August 8, 2018, the undersigned granted Plaintiff’s request to reopen the action, and 10 directed Plaintiff to file an amended complaint within thirty days. (ECF No. 24.) On August 31, 2018, and October 5, 2018, the Court granted Plaintiff thirty additional days to 11 12 file the amended complaint, resulting in a deadline of November 5, 2018. (ECF Nos. 26, 28.) To date, 13 Plaintiff has not file an amended complaint or otherwise responded to the Court’s order. Accordingly, 14 dismissal of the action is warranted. 15 II. 16 DISCUSSION 17 The Court has the inherent power to control its docket and may, in the exercise of that power, 18 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles Cnty., 19 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court must weigh 20 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 22 on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) 23 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). 24 These factors guide a court in deciding what to do, and are not conditions that must be met in order for 25 a court to take action. Id. (citation omitted). 26 /// 27 /// 28 /// 2 1 Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the Court 2 is left with no alternative but to dismiss the action for failure to prosecute. Id. This action can proceed 3 no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot 4 simply remain idle on the Court’s docket, unprosecuted. Id. 5 III. 6 RECOMMENDATION 7 Accordingly, it is HEREBY RECOMMENDED that: 8 1. 9 This action be dismissed for failure to comply with a court order and for failure to state a cognizable claim for relief; and 10 2. The Clerk of Court be directed to terminate this action. 11 This Findings and Recommendation will be submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 13 after being served with this Findings and Recommendation, Plaintiff may file written objections with 14 the Court. 15 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 16 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 17 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to Magistrate Judge’s Findings and 18 19 IT IS SO ORDERED. 20 Dated: 21 November 13, 2018 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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