(PC) Ash v. McDaniel, et al., No. 1:2018cv00640 - Document 11 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss with Prejudice Due to Plaintiff's Failure to Comply with the Court's Order, Failure to Prosecute, and Failure to State a Claim, re 1 , 7 , 10 , signed by Magistrate Judge Sheila K. Oberto on 2/11/19. This case is assigned to District Judge Anthony W. Ishii and Magistrate Judge Sheila K. Oberto. The new case no. is: 1:18-cv-0640-AWI-SKO. referred to Judge Ishii. Objections to F&R due within twenty-one days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 1:18-cv-00640-SKO (PC) DARRYL ASH, FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE DUE TO PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER, FAILURE TO PROSECUTE, AND FAILURE TO STATE A CLAIM Plaintiff, v. McDANIEL, et al., Defendants. (Docs. 1, 7, 10) 16 TWENTY-ONE (21) DAY DEADLINE 17 Clerk of Court to Assign a District Judge 18 19 Plaintiff, Darryl Ash, is a former state prisoner proceeding pro se and in forma pauperis 20 with a civil rights action pursuant to 42 U.S.C. § 1983. On October 9, 2018, the Court issued the 21 First Screening Order finding that the Complaint failed to state any cognizable claims and 22 granting leave for Plaintiff to file a first amended complaint within twenty-one (21) days. (Doc. 23 7.) More than thirty days lapsed without Plaintiff filing an amended complaint, or other 24 responding to the First Screening Order. 25 On January 9, 2019, an order issued for Plaintiff to show cause (“OSC”) within twenty- 26 one (21) days why this action should not be dismissed with prejudice based on Plaintiff’s failure 27 to comply with the First Screening Order and for failure to state a cognizable claim. (Doc. 10.) 28 1 1 Plaintiff was warned in both the First Screening Order and the OSC that a failure to comply 2 would result in dismissal of this action for his failure to obey a court order, failure to prosecute, 3 and failure to state a cognizable claim. (Docs. 7, 10.) The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel, or 4 5 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 6 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. 7 “District courts have inherent power to control their dockets,” and in exercising that power, a 8 court may impose sanctions, including dismissal of an action. Thompson v. Housing Authority of 9 Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, 10 based on a party’s failure to prosecute an action or failure to obey a court order, or failure to 11 comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 12 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 13 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 14 15 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 First Screening 16 17 18 Order and OSC, there is no alternative but to dismiss the action for Plaintiff’s 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 19 20 21 22 23 24 25 26 27 28 prejudice, for Plaintiff's failure to obey a court order, to prosecute this action, and to state a cognizable claim. The Clerk of the Court is directed to randomly assign a District Judge to this action. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 1 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 4 5 IT IS SO ORDERED. Dated: February 11, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 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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