(PC) Rudan v. Immigration & Customs Enforcement et al, No. 1:2019cv00241 - Document 8 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS to revoke Plaintiff's In Forma Pauperis Status and to dismiss without prejudice 2 , 4 , 7 . Clerk to assign a District Judge. Case assigned and referred to District Judge Dale A. Drozd. Objections to F&R's due within 21-Days. Signed by Magistrate Judge Jennifer L. Thurston on 4/9/2019. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARY NELSON RUDAN, 12 Plaintiff, 13 14 15 16 17 18 v. IMMIGRATION & CUSTOMS ENFORCEMENT, et al., Defendants. Case No. 1:19-cv-00241-JLT (PC) FINDINGS AND RECOMMENDATIONS TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS AND TO DISMISS WITHOUT PREJUDICE (Docs. 2, 4, 7) 21-DAY DEADLINE Clerk to Assign a District Judge This case was opened erroneously as a 28 U.S.C. § 2241 habeas corpus action. The Court 19 determined that Plaintiff does not seek habeas corpus relief and redesignated it as a civil action 20 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 21 (1971). Since this action proceeds now under Bivens, instead of § 2241, different filing fees 22 apply. Upon review, the Court noted that Plaintiff failed to provide certification of his trust 23 account balance as required on the in forma pauperis application form and has not subsequently 24 submitted any such information. Thus, the Court ordered Plaintiff to show cause why his in 25 forma pauperis status should not be revoked. (Doc. 7.) Plaintiff has not filed a response. 26 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel, or 27 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 28 Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. 1 1 “District courts have inherent power to control their dockets,” and in exercising that power, a 2 court may impose sanctions, including dismissal. Thompson v. Housing Authority of Los 3 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based 4 on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply 5 with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 6 for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal 7 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 8 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 9 to comply with local rules). 10 Not only did Plaintiff not file a response to the Court’s order, he has also not filed a 11 response to any of the other orders of the Court issued on February 25, 2019. (Doc. 6-1.) In fact, 12 it appears that Plaintiff is no longer in custody, has not kept the Court informed of his current 13 address, as ordered in the First Informational Order, (Doc. 6), and has abandoned this action. 14 (See entries for mail returned as undeliverable on February 27, 2010, March 4, 2019, and March 15 18, 2019.) Based on Plaintiff’s failure both to comply with the Court’s orders and to prosecute 16 this action, there is no alternative but to dismiss the action. 17 Accordingly, the Court RECOMMENDS that this action be dismissed based on 18 Plaintiff’s failure to obey a court order and to prosecute this action, 42 U.S.C. § 1997e (a). The 19 Clerk of the Court is directed to randomly assign a District Judge to this case. These Findings and Recommendations will be submitted to the United States District 20 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21- 22 days after being served with these Findings and Recommendations, Plaintiff may file written 23 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 24 Findings and Recommendations.” 25 /// 26 /// 27 /// 28 /// 2 1 Failure to file objections within the specified time may result in the waiver of rights on 2 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: April 9, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 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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