Harris v. Severson et al, No. 1:2017cv01750 - Document 6 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending to Dismiss With Prejudice for Plaintiff's Failure to Comply with the Court's Order and Failure to State a Claim. Matter referred to Judge Ishii. Objections to F&R due within twenty-one (21) days after being served with these Findings and Recommendation; signed by Magistrate Judge Sheila K. Oberto on 5/3/2018. (Timken, A)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 Plaintiff, 7 8 Case No. 1:17-cv-1750-AWI-SKO BERT HARRIS, v. 9 10 11 SERGEANT MIKE SEVERSON, individually and in his official capacity, and CITY OF FRESNO, individually and in their official capacity , 12 FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR PLAINITFF’S FAILURE TO COMPLY WITH THE COURT'S ORDER AND FAILURE TO STATE A CLAIM (Docs. 1, 4, 5.) TWENTY-ONE (21) DAY DEADLINE Defendants. 13 14 15 Plaintiff, Bert Harris, is a prisoner in the custody of Fresno County Jail. On December 27, 16 2017, Plaintiff, proceeding pro se, filed a civil rights complaint against Defendants Sergeant Mike 17 Severson and the City of Fresno purporting to allege causes of action for excessive force and 18 failure to properly train officers in violation of Plaintiff’s “8th Amendment Rights to the United 19 States Constitution,” apparently arising out of his arrest by Defendants. (Doc. 1 at 3–4.) Plaintiff 20 also filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which was 21 granted on January 10, 2018. (Docs. 2 & 3.) 22 On February 13, 2018, the undersigned issued a screening order dismissing the Complaint 23 for failure to state any cognizable claims and granting Plaintiff thirty days leave to file an amended 24 complaint curing the pleading deficiencies identified in the order. (Doc. 4.) More than thirty days 25 have lapsed without Plaintiff having filed an amended complaint or other response to the Court’s 26 screening order. 27 28 On March 20, 3018, an order issued for Plaintiff to show cause within twenty-one days why the action should not be dismissed for his failure to comply with the Court’s order and for 1 failure to state a claim. (Doc. 5.) Plaintiff was warned that the failure to comply with the Court's 2 order would result in a recommendation to the presiding district judge of the dismissal of this 3 action for his failure to obey a court order, failure to prosecute, and failure to state a cognizable 4 claim. (Id.) Plaintiff has not yet filed any response.1 5 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 6 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 7 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. 8 “District courts have inherent power to control their dockets,” and in exercising that power, a court 9 may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of Los 10 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based 11 on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply with 12 local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 13 failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal 14 15 16 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). Based on Plaintiff’s failure to comply with, or otherwise respond to, the order that 17 18 19 dismissed the Complaint, there is no alternative but to dismiss the action for his failure to respond to/obey a court order, failure to prosecute, and failure to state a cognizable claim. Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 20 21 22 prejudice, for Plaintiff’s failure to obey the Court’s order, to prosecute this action, and to state a cognizable claim. These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within 24 twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff may 25 file written objections with the Court. 26 The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 27 28 1 The order to show cause was retuned as undeliverable on April 4, 2018, and was re-served by mail on April 6, 2018. (See Docket.) 2 1 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 3 Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: May 3, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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