Brown v. The City of Fresno et al, No. 1:2018cv01428 - Document 6 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be Dismissed, with prejudice, for Plaintiff's failure to obey a Court order, failure to prosecute this action, and failure to state a cognizable claim re 1 Complaint filed by Rayquin Ray Brown ; referred to Judge Ishii, signed by Magistrate Judge Sheila K. Oberto on 03/26/2019. Objections to F&R due 21-Day Deadline(Martin-Gill, S)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 RAYQUIN RAY BROWN, 7 Plaintiff, 8 v. 9 10 11 THE CITY OF FRESNO, ET AL., Case No. 1:18-cv-1428-AWI-SKO FINDINGS AND RECOMMENDATION TO DISMISS WITH PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT'S ORDER AND FAILURE TO STATE A CLAIM (Docs. 1, 4, 5) Defendants. TWENTY-ONE (21) DAY DEADLINE 12 13 On October 15, 2018, Plaintiff, proceeding pro se, filed a civil rights complaint against 14 Defendants City of Fresno, Clovis Police Department, Sergeant V. Weibert, Officer N. Mason, 15 Officer C. Taliaferro, Corporal S. Borsch, Officer M. Bradford, Officer E. Roehlk, Officer E. 16 Taifane, and Officer A. Fresnh purporting to allege causes of action under 42 U.S.C. § 1983 17 (“section 1983”) for false arrest, excessive force, due process violations, and municipal and 18 supervisory liability, and causes of action under state law for conspiracy and negligent hiring and 19 20 retention. (Doc. 1. (“Compl.”) at 6–9.) Plaintiff seeks compensatory damages, punitive damages, and “reasonable attorneys’ fees, costs, and disbursements.” (Id. at 9.) Plaintiff also filed an 21 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which was granted on 22 October 17, 2018. (Docs. 2 & 3.) 23 On January 14, 2019, the undersigned issued a screening order finding that Plaintiff failed 24 to state any cognizable claims and granted Plaintiff twenty-one days leave to file an amended 25 complaint curing the pleading deficiencies identified in the order. (Doc. 4.) Although more than 26 the allowed time has passed, Plaintiff has failed to file an amended complaint or otherwise respond 27 to the screening order. 28 1 On February 19, 2019, an order issued for Plaintiff to show cause (“OSC”) within twenty- 2 one days why the action should not be dismissed for his failure to comply with the Court’s screening 3 order and for failure to state a claim. (Doc. 5.) Plaintiff was warned in both the screening order and 4 the OSC that the failure to comply with the Court's order would result in a recommendation to the 5 presiding district judge of the dismissal of this action. (Id.) Plaintiff has not yet filed any response. 6 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 7 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 8 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. See also 9 Local Rule 183(a). “District courts have inherent power to control their dockets,” and in exercising 10 that power, a court may impose sanctions, including dismissal of an action. Thompson v. Housing 11 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 12 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure 13 to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 14 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 15 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 16 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute 17 and to comply with local rules). 18 Based on Plaintiff’s failure to comply with, or otherwise respond to, the screening order and 19 the OSC, there is no alternative but to dismiss the action for his failure to respond to/obey a court 20 order, failure to prosecute, and failure to state a cognizable claim. 21 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 22 prejudice, for Plaintiff’s failure to obey a court order, failure to prosecute this action, and failure to 23 state a cognizable claim. 24 These Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty26 one (21) days after being served with these Findings and Recommendation, Plaintiff may file 27 written objections with the Court. The document should be captioned “Objections to Magistrate 28 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 2 1 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at his address listed 4 on the docket for this matter. 5 6 IT IS SO ORDERED. 7 Dated: 8 March 26, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 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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