Opinion
CASE NO. 3:19-cv-05382-RJB-JRC
08-13-2019
JOSEPH RHODES, Plaintiff, v. DEPUTY HANKS, et al., Defendants.
REPORT AND RECOMMENDATION NOTED FOR: AUGUST 30, 2019
The District Court has referred this action filed under 42 U.S.C. § 1983 to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. See Dkt. 2. The undersigned recommends that this action be dismissed without prejudice because plaintiff has failed to comply with a court order and to prosecute this action. /// /// ///
BACKGROUND
Plaintiff Joseph Rhodes, proceeding pro se and in forma pauperis, initiated this civil rights action on May 6, 2019. See Dkts. 1, 4. On June 10, 2019, the Court screened plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that plaintiff failed to state a claim under § 1983. See Dkt. 7. In particular, plaintiff's bare allegations of "racial discrimination" lacked sufficient facts to demonstrate that defendants' actions violated plaintiff's constitutional rights based upon his membership in a protected class. See Dkt. 7, at 4-5. Additionally, plaintiff failed to allege a municipal custom or policy that led to plaintiff's injury or otherwise specify the constitutional or statutory rights that he claims were violated. See Dkt. 7, at 2.
The Court ordered plaintiff to show cause by July 5, 2019 why the complaint should not be dismissed. Id. The Court warned plaintiff that failure to comply with the show cause order would result in the Court recommending dismissal of this action pursuant to 28 U.S.C. § 1915(e)(2). See Dkt. 7, at 9.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal if a 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. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply with any order of the court).
Here, plaintiff has not filed a response to the order to show cause or an amended complaint. After this Court's show cause order, plaintiff filed medical records and x-rays of plaintiff's fractured right hand after a fall dated May 17, 2019 (see Dkt. 8, at 1-5), x-rays of plaintiff's lumbosacral spine dated January 25, 2019 (see Dkt. 8, at 6-12), and Department of Corrections Health Status reports dated January 11, 2019, March 20, 2019, May 17, 2019, May 27, 2019, June 27, 2019, and July 3, 2019. See Dkt. 8, at 13-18. On August 8, 2019, plaintiff filed radiology reports and digital x-rays of his hand, as well as a surgical consultation scheduling letter. See Dkt. 10. These documents do not satisfy the Court's order to submit an amended complaint on the form provided by the Court by July 5, 2019. See Dkt. 7, at 9. Therefore, plaintiff has failed to comply with the Court's order, and the undersigned recommends that the matter be dismissed without prejudice.
The Court recommends revoking plaintiff's in forma pauperis status for purposes of appeal. 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 lacks any arguable basis in fact, the district court should certify that an appeal would not be taken in good faith.
CONCLUSION
As plaintiff has failed to comply with the show cause order, the Court recommends that this case be DISMISSED WITHOUT PREJUDICE. See Fed. R. Civ. P. 41(b). Plaintiff's in forma pauperis status should be revoked for purposes of appeal.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties 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 appeal. Thomas v Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on August 30, 2019, as noted in the caption.
Dated this 13th day of August, 2019.
/s/_________
J. Richard Creatura
United States Magistrate Judge