White et al v. City of Vallejo

Filing 72

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/23/2017 VACATING all future hearing dates; DENYING 69 Motion for Summary Judgment, without prejudice, as moot; RECOMMENDING that the 8 First Amended Complaint be dismissed without prejudice and that this action be closed; REFERRING this matter to Judge John A. Mendez; ORDERING that any objections be filed and served within fourteen days. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER WHITE, ZERITA
WHITE, G’SHELLE WHITE AND
DANTRELL STEVENS,

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Plaintiffs,
v.

No. 2:14-cv-1603 JAM DB PS

ORDER AND FINDINGS AND
RECOMMENDATIONS

CITY OF VALLEJO, et al.,
Defendants.

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Plaintiffs are proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

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On January 31, 2017, defendants filed a motion for summary judgment and noticed that

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motion for hearing before the undersigned on March 3, 2017. (ECF No. 69.) Pursuant to Local

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Rule 230(c) plaintiffs were to file oppositions or statements of non-opposition to defendants’

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motion “not less than fourteen (14) days preceding the noticed . . . hearing date.” No plaintiff,

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however, filed a timely opposition or statement of non-opposition.

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Accordingly, on February 24, 2017, the undersigned issued an order to show cause in

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writing within fourteen days as to why this action should not be dismissed for lack of prosecution.

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(ECF No. 71.) Plaintiffs were cautioned that failure to file a written response to that order could

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result in the undersigned recommending that this matter be dismissed. (Id. at 2.) Nonetheless,
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the time provided plaintiffs has expired and no plaintiff has not responded to the order to show

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cause in any way.

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ANALYSIS
The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.

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Failure of a party to comply with the any order of the court “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself

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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local

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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable

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rules and law may be grounds for dismissal or any other sanction appropriate under the Local

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Rules. Id.

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Here, plaintiffs failed to file a statement of opposition or non-opposition to defendants’

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motion for summary judgment. The undersigned issued an order to show cause that provided

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plaintiffs with an opportunity to show good cause for their conduct, along with a further

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opportunity to oppose defendants’ motion. Plaintiffs failed to respond to that order in any way.

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The order to show cause specifically warned plaintiffs that the failure to file a written response to

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that order could result in a recommendation that this matter be dismissed.

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Plaintiffs’ lack of prosecution of this case renders the imposition of monetary sanctions

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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to

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manage its docket, and the risk of prejudice to the defendant all support the imposition of the

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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against
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dismissal. However, plaintiffs’ failure to prosecute the action in any way makes disposition on

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the merits an impossibility. The undersigned will therefore recommend that this action be

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dismissed due to plaintiffs’ failure to prosecute as well as plaintiffs’ failure to comply with the

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court’s orders. See Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1) All future hearing dates in this action are vacated; and

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2) Defendants’ January 31, 2017 motion for summary judgment (ECF No. 69) is denied

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without prejudice as having been rendered moot.1

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Also, IT IS HEREBY RECOMMENDED that:
1) Plaintiff’s August 29, 2014 amended complaint (ECF No. 8) be dismissed without

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prejudice; and

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2) This action be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 23, 2017

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DLB:6
DB/orders/orders.pro se/white1603.dlop.f&rs

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In the event the assigned District Judge does not adopt these findings and recommendation,
defendants may re-notice their motion for summary judgment for hearing before the undersigned.
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