Opinion
1:20-cv-01036-DAD-SKO (PC)
03-02-2023
JONATHAN DEWITT MCDOWELL, Plaintiff, v. ATKINSON, et al., Defendants.
ORDER TO SHOW CAUSE IN WRITING WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO OBEY COURT ORDER 21-DAY DEADLINE
SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE
Plaintiff Jonathan Dewitt McDowell is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action.
Plaintiff was released on parole in July 2022. (See Docket Entries dated 7/12/2022 & 8/2/2022 noting mail was returned to the Court marked “Undeliverable” “Paroled” “Refused” and “Return to Sender”). On August 4, 2022, Plaintiff filed a Notice of Change of Address, providing a residential street address in Hemet, California. (See Doc. 58.)
I. RELEVANT PROCEDURAL BACKGROUND
On October 17, 2022, this Court issued its Discovery and Scheduling Order. (Doc. 63.) In relevant part, the Order set a January 17, 2023 deadline for the filing of an exhaustion motion. (Id. at 1, 3.)
On January 17, 2023, Defendant Johnson filed a motion for partial summary judgment on based on exhaustion. (Doc. 65.) The motion included a Rand warning, and Plaintiff was advised he had 21 days within which to respond to Defendant Johnson's motion. (Id. at 2-3.)
Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998).
On February 8, 2023, Plaintiff filed a document titled “Motion for Extention of Time to File Motion.” (Doc. 66.) Plaintiff sought a brief extension of time to “file discovery documents of all above.” (Id. at 1.) Plaintiff stated he “know[s] the Court has issued time and dates for such action to be filed but [Plaintiff] did not receive such documents in time to prepare all document.” (Id.) Plaintiff asserted “all document will be ready,” if he is granted a “2 week” extension. (Id.)
On February 10, 2023, this Court issued its Order “Granting Plaintiff An Extension Of Time Within Which To File Opposition To Defendant Johnson's Motion For Partial Summary Judgment On The Grounds Of Exhaustion.” (Doc. 67.) Plaintiff was granted an extension of time of 14 days from the date of service of the order to file an opposition to the motion for partial summary judgment. (Id. at 2.) More than 14 days have passed, and Plaintiff has failed to file an opposition, statement of non-opposition, request a further extension of time, or otherwise respond to the Court's order.
II. DISCUSSION AND ORDER
The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide that a “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party's failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
Plaintiff has failed to comply with this Court's February 9, 2023 Order, and with this Court's Local Rules and the Federal Rules of Civil Procedure, by failing to file an opposition to Defendant Johnson's pending motion for partial summary judgment.
Accordingly, the Court ORDERS Plaintiff to show cause in writing, within 21 days of the date of service of this order, why this action should not be dismissed for his failure to comply with the Court's February 9, 2023 Order. Alternatively, within that same time, Plaintiff may file his opposition or statement of non-opposition to Defendant Johnson's partial motion for summary judgment on exhaustion grounds.
Failure to comply with this order will result in a recommendation that this action be dismissed for failure to obey court orders.
IT IS SO ORDERED.