Opinion
No. 1:19-cv-01435-NONE-SKO
05-19-2020
THOMAS DOYLE, Plaintiff, v. NOAH MARSHAL, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE AND OBEY THE COURT'S ORDERS
(Doc. No. 8)
On October 11, 2019, plaintiff, proceeding pro se, filed a complaint against defendants, but failed to either pay the filing fee or file a motion to proceed in forma pauperis. (See Doc. No. 1.) On October 18, 2019, the assigned magistrate judge directed plaintiff to either pay the filing fee or request to proceed in forma pauperis within thirty days of the date of service of the order. (Doc. No. 2.) Plaintiff filed a motion to proceed in forma pauperis on October 29, 2019. (Doc. No. 3.)
The assigned magistrate judge thereafter preliminarily reviewed plaintiff's complaint. Because the allegations related mostly to plaintiff's criminal conviction in state court and may be more appropriately brought in a petition for habeas corpus, on November 21, 2019, the magistrate judge provided plaintiff with the applicable pleading standards and directed Plaintiff to file either (1) a first amended complaint under 42 U.S.C. § 1983 clarifying that his claims were in fact brought under that section; (2) a petition for habeas corpus under 28 U.S.C. § 2254; or (3) a notice of voluntary dismissal. (Doc. No. 4 at 7.) That order warned plaintiff that failure to comply with the order would "result in a recommendation to the assigned district judge that this case be dismissed for failure to comply with a court order." (Id. at 8.) Plaintiff failed to comply with the November 21, 2019 order and has not complied to date.
The Clerk mailed the November 21, 2019 order to plaintiff, but the order was returned as undeliverable on December 4, 2019. (See Docket.) On January 8, 2020, plaintiff filed a notice of change of address, and the Clerk updated his address on the docket to "AZ-7224, North Kern State Prison (5004), P.O. Box 5004, Delano, CA 93216-9022." (See Doc. No. 5.) On January 13, 2020, the Clerk re-served plaintiff with the order at his new address, (see Docket), and the deadline to comply with the order has now passed.
On March 4, 2020, the magistrate judge directed plaintiff to show cause within fourteen days why the case should not be dismissed for his failure to comply with the November 21, 2019 order, and warned plaintiff that if he did not respond to the order, a recommendation would issue that the action be dismissed. (Doc. No. 7.) Plaintiff failed to respond to the order to show cause by the deadline and has not filed a response to date.
In accordance with 28 U.S.C. § 636 and Local Rule 302, on April 20, 2020, the assigned magistrate judge issued findings and recommendations recommending that this action be dismissed without prejudice because plaintiff failed to comply with the order to show cause, failed to comply with other court orders, and failed to prosecute the case. (Doc. No. 8.) The findings and recommendations were mailed to plaintiff's address on the docket and contained notice that any objections were to be filed within fourteen days. (Id.) No objections have been filed.
The findings and recommendations recommend that the dismissal be without prejudice because plaintiff at least complied with the order to either pay the filing fee or file a motion to proceed in forma pauperis, (see Doc. No. 8 at 4 n.3), and only thereafter ceased prosecuting the case. Thus, plaintiff may later re-file the case as either a civil case or habeas action, if desired, and if he intends to diligently prosecute the case. --------
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court finds that the findings and recommendation are supported by the record and proper analysis.
ORDER
Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendation dated April 20, 2020 (Doc. No. 8), are adopted in full; 2. Plaintiff's motion to proceed in forma pauperis, (Doc. No. 3), is denied as moot; 3. This action is dismissed without prejudice due to plaintiff's failure to prosecute and to comply with court orders; and 4. The Clerk is directed to close this case. IT IS SO ORDERED.
Dated: May 19 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE