Goff v. Gamez et al

Filing 70

ORDER on FINDINGS AND RECOMMENDATIONS 54 , signed by District Judge Anthony W. Ishii on 4/12/2019: The Court respectfully DECLINES to adopt the Findings and Recommendations; and This case is referred back to the Magistrate Judge for further proceedings, including resolution of a motion to compel by Defendants and conducing a scheduling conference. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS GOFF, 10 CASE NO. 1:15-CV-0937 AWI EPG Plaintiff 11 12 ORDER ON FINDINGS AND RECOMMENDATIONS v. GAMEZ, et al., 13 (Doc. No. 54) Defendants 14 15 16 Plaintiff Thomas Goff is a former state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action under 42 U.S.C. § 1983. 18 On December 18, 2018, Magistrate Judge Grosjean issued a Findings and 19 Recommendation (“F&R”) that recommended dismissing this case due to Plaintiff’s failure to 20 comply with a Court order and failure to prosecute. See Doc. No. 54. The F&R noted that this 21 case was dismissed in 2017 because Plaintiff failed to obey the Local Rules and diligently 22 prosecute the case. See id.; see also Doc. No. 12. The F&R also noted that Plaintiff served his 23 initial disclosures almost two months late, failed to file a scheduling conference statement, failed 24 to appear at the December 2018 scheduling conference, and again had not updated his address. 25 See id. 26 On January 9, 2019, Plaintiff filed objections to the F&R. See Doc. No. 59. Plaintiff 27 explains that he was en route to the December 2018 scheduling conference when he was stopped 28 by the California Highway Patrol and arrested for violation of a “probation sanction.” See id. 1 Plaintiff also states that his living situation is unstable, he takes medication for pain and 2 psychological reasons, has confusion, and has documents in his possession related to prosecuting 3 this case. See id. Plaintiff also states that he plans to purchase a P.O. Box in order to have a 4 stable mailing address. See id. Plaintiff states that he is taking corrective actions to stabilize his 5 situation and be compliant with procedures of court, and requests that the Court not dismiss this 6 case. See id. 7 On January 24, 2019, Defendants filed a reply to Plaintiff’s objections. See Doc. No. 63. 8 Defendants urge the Court to adopt the F&R, point out that Plaintiff could have simply called in to 9 the scheduling conference and avoided any problems with the conditions of his probation, and 10 note that Plaintiff has a history of non-prosecution. See id. 11 On January 28, 2019, Plaintiff filed a notice of change of address. See Doc. No. 65. 12 On February 4, 2019, Plaintiff filed a scheduling conference statement. See Doc. No. 66. 13 On March 18, 2019, Plaintiff filed a motion for appointment of counsel and a request for 14 this case to “move forward.” See Doc. Nos. 67, 68. 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 16 de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 17 objections, the Court will respectfully decline to adopt the F&R. Plaintiff’s filings and conduct 18 subsequent to the F&R demonstrate a desire, willingness, and apparent ability to prosecute this 19 matter. Given Plaintiff’s pro se status and his alleged medical and living circumstances, the Court 20 will give Plaintiff one more chance to properly prosecute this case. 21 Although the Court will not dismiss the case at this time, the Court warns Plaintiff that the 22 F&R’s analysis was reasonable. It is only Plaintiff’s subsequent conduct that has caused the Court 23 to forego dismissal. The Court warns Plaintiff that he is under an obligation to prosecute this case, 24 obey court orders (issued both by the undersigned and the Magistrate Judge) and follow the Local 25 Rules, particularly the Local Rule regarding changes of address. Further, Defendants’ point about 26 Plaintiff calling into the scheduling conference is valid. Because the order setting the scheduling 27 conference expressly stated that the scheduling conference was to be telephonic, and gave 28 instructions on how to telephonically appear, see Doc. No. 46, it is unknown why Plaintiff could 2 1 not have simply participated telephonically in the scheduling conference and thus, remained in 2 compliance with the terms of his parole/probation. Plaintiff should take measures to comply with 3 both his parole/probation obligations and his obligation to prosecute this case. The Court will not 4 accept any further violations of parole/probation as a valid excuse for any violations of court 5 orders or the Local Rules. 6 In light of what has already occurred in this case, any further disobedience of court orders 7 or the Local Rules, or any further failures in the prosecution of this matter, may be grounds for 8 sanctions, including the possible dismissal and closure of this case. 9 10 ORDER 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The Court respectfully DECLINES to adopt the Findings and Recommendation (Doc. No. 13 54); and 14 2. This case is referred back to the Magistrate Judge for further proceedings, including 15 resolution of a motion to compel by Defendants and conducing a scheduling conference. 16 17 IT IS SO ORDERED. 18 Dated: April 12, 2019 SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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