Smith v. Kemper Insurance

Opinion

1 2 5 6 CANDACE SMITH, Case No. 1:24-cv-00587-SKO 7 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE TO COMPLY 8 v. WITH THE COURT’S ORDERS AND FAILURE TO PROSECUTE D’AMBROSIO, ALL-STATE (Docs. 4 & 5) FOURTEEN-DAY DEADLINE 11 Defendants. Clerk to Assign District Judge 12

13 14 16 Plaintiff Candace Smith, proceeding pro se and in forma pauperis, filed a complaint on 17 May 16, 2024. (Doc. 1). On July 30, 2024, the undersigned screened the complaint (Doc. 4) and 18 ordered Plaintiff to take one of three actions within 30 days: (1) file a First Amended Complaint; 19 (2) notify the Court in writing that she wishes to stand on this complaint; or (3) file a notice of 20 voluntary dismissal. Although more than 30 days have passed, Plaintiff has not taken further 21 action in this case. 22 On September 19, 2024, an order issued for Plaintiff to show cause (“OSC”) within 23 twenty-one days why the action should not be dismissed for her failure to comply with the 24 Court’s screening order and for failure to prosecute this case. (Doc. 5). Plaintiff was warned in 25 the screening order and in the OSC that failure to comply with the Court’s order would result in a 26 recommendation to the presiding district judge of the dismissal of this action. (Id. at 2; see also 27 Doc. 4 at 5). Plaintiff has not yet filed any response, and the time to do so has passed. 28 1 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or 2 of a party to comply with . . . any order of the Court may be grounds for the imposition by the 3 Court of any and all sanctions . . . within the inherent power of the Court.” E.D. Cal. Local Rule 4 110. See also E.D. Cal. Local Rule 183(a). “District courts have inherent power to control their 5 dockets,” and in exercising that power, a court may impose sanctions, including dismissal of an 6 action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 7 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action or 8 failure to obey a court order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 9 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 10 amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 11 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 12 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 13 Based on Plaintiff’s failure to comply with, or otherwise respond to, the screening order 14 and the OSC, there is no alternative but to dismiss the action for her failure to obey court orders 15 and failure to prosecute. 16 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for 17 Plaintiff’s failure to obey court orders and failure to prosecute this action. The Clerk of Court is 18 DIRECTED to assign a District Judge to this action. 19 These Findings and Recommendation will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B). Within fourteen 21 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 24 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 25 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 // 27 // 28 // 1 The Court DIRECTS the Clerk of Court to send a copy of this Order to Plaintiff at her 2 address listed on the docket for this matter. 3 IT IS SO ORDERED. 4

5 Dated: October 9, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6

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