Opinion
CASE NO. 3:18-CV-06026-BHS-JRC
05-20-2019
BURT DANIELS, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, et al., Defendants.
REPORT AND RECOMMENDATION NOTED FOR: JUNE 7, 2019
The District Court has referred this 42 U.S.C. § 1983 civil rights action to the undersigned Magistrate Judge. See Dkt. 2. The Court's authority for the referral is 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4.
The Court recommends that this action be dismissed with prejudice because plaintiff has failed to comply with a court order and to prosecute this action.
BACKGROUND
In December 2018, plaintiff, who was housed in the Special Commitment Center, requested to proceed in forma pauperis ("IFP"). See Dkt. 1. The Court granted plaintiff's request but found that plaintiff's complaint failed to state a claim upon which relief could be granted. See Dkt. 6, at 4. Therefore, the Court ordered plaintiff to file an amended complaint by February 22, 2019, or the undersigned would recommend dismissal of this action. See Dkt. 6, at 5. Plaintiff failed to file an amended complaint.
On March 28, 2019, the Court learned that plaintiff had updated his address in another matter, Daniels v. Shaw, 3:18-cv-05101-RBL-TLF, and accordingly the Court directed the Clerk to serve the show cause order on plaintiff's updated address. See Dkt. 7. The Court extended the deadline to respond to the show cause order to April 29, 2019. See Dkt. 7. However, to date, plaintiff has neither amended his complaint nor otherwise taken action in this matter.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal if plaintiff fails to prosecute or to comply with a court order. The dismissal counts as an adjudication on the merits unless the Court provides otherwise. Here, the Court has twice ordered plaintiff to file an amended complaint. See Dkts. 6, 7. Yet plaintiff has failed to file an amended complaint or otherwise to take action in this matter. Therefore this Court recommends that this matter be DISMISSED WITH PREJUDICE for failure to comply with a court order.
IFP status on appeal shall not be granted if the district court certifies "before or after the notice of appeal is filed" "that the appeal is not taken in good faith[.]" Fed. R. App. P. 24(a)(3)(A); see also 28 U.S.C. § 1915(a)(3). A plaintiff satisfies the "good faith" requirement if he seeks review of an issue that is "not frivolous," and an appeal is frivolous where it lacks any arguable basis in law or fact. Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because plaintiff's complaint failed to state a claim upon which relief could be granted, the District Court should certify that any appeal would not be taken in good faith. ///
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), plaintiff shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on June 7, 2019, as noted in the caption.
Copies of this report and recommendation should be sent to plaintiff's addresses of record, including the address noted in this Court's order extending the deadline to respond to the show cause order (Dkt. 7)—1408 East 31st Street, Tacoma, Washington, 98404.
Dated this 20th day of May, 2019.
/s/_________
J. Richard Creatura
United States Magistrate Judge