(PC) Nieto v. Gordon et al, No. 1:2020cv00291 - Document 26 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Prosecute signed by Magistrate Judge Jennifer L. Thurston on 05/19/2021. Referred to Judge Drozd; Objections to F&R due within Fourteen-Days.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MOISES NIETO, 12 Plaintiff, 13 14 v. Case No. 1:20-cv-00291-DAD-JLT (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO PROSECUTE WARDEN GORDON, et al., Defendants. 15 14-DAY DEADLINE 16 17 On January 13, 2021, the Court issued Findings and Recommendations construing 18 Plaintiff’s “Second First Amended Complaint” as notice of Plaintiff’s intention to stand on his 19 first amended complaint. (Doc. 15.) The Court recommended that this action proceed only on the 20 claims found cognizable it its December 17, 2020, screening Order (Doc. 12), and that all other 21 claims and defendants should be dismissed. (Doc. 15.) Plaintiff filed timely objections to the 22 Findings and Recommendations. (Doc. 16.) The Court conducted a de novo review of this case, 23 including Plaintiff’s objections, and entered an Order adopting the Findings and 24 Recommendations in full and dismissing non-cognizable claims. (Doc. 17) 25 On February 3, 2021, the Clerk of Court served a copy of the Order on Plaintiff. However, 26 on February 22, 2021, the U.S. Postal Service returned the mail as “Undeliverable, Return to 27 Sender, Refused, Unable to Forward.” To date, Plaintiff has not updated his address with the 28 Court. 1 As explained in the Court’s first informational order, parties appearing pro se must keep 2 the Court advised of their current address. (Doc. 6 at 5.) Pursuant to the Local Rules, if mail 3 directed to a pro se plaintiff at his address of record is returned by the U.S. Postal Service and the 4 plaintiff fails to update his address within 63 days, the Court may dismiss his action for failure to 5 prosecute. L.R. 183(b). 6 The Local Rules also provide that “[f]ailure of counsel or of a party to comply with . . . 7 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 8 . . . within the inherent power of the Court.” L.R. 110. “District courts have inherent power to 9 control their dockets” and, in exercising that power, may impose sanctions, including dismissal of 10 an action. Thompson v. Hous. Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 11 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 12 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) 13 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 14 Serv., 833 F.2d 128, 130–31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 15 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 16 to comply with local rules). 17 Although more than 63 days have passed since the U.S. Postal Service returned the 18 Court’s screening order, Plaintiff has failed to notify the Court of his current address. Apparently, 19 Plaintiff has abandoned this action. Whether he has done so intentionally or mistakenly is 20 inconsequential. It is Plaintiff’s responsibility to comply with the Court’s orders and Local Rules. 21 The Court declines to expend its limited resources on a case that Plaintiff has chosen to ignore. 22 23 24 Accordingly, the Court RECOMMENDS that this action be DISMISSED without prejudice for Plaintiff’s failure to prosecute. These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 26 of the date of service of these Findings and Recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 2 1 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: May 19, 2021 _ /s/ Jennifer L. Thurston CHIEF 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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