Ekunwe v. County of Sacramento, et al.
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/18/17 ORDERING that the January 27, 2017 hearing of defendant's motion is VACATED; and defendant's November 21, 2016 motion for summary judgment (ECF No. 29 ) is DENIED without prejudice as having been rendered moot. It is RECOMMENDED that Plaintiff's October 14, 2014 complaint (ECF No. 1 ) be dismissed without prejudice; and this action be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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AMIR EKUNWE,
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No. 2:14-cv-2410 TLN DB PS
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
COUNTY OF SACRAMENTO, et al.,
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Defendants.
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Plaintiff is 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).
On November 21, 2016, defendant filed a motion for summary judgment and noticed that
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motion for hearing before the undersigned on December 23, 2016. (ECF No. 29.) Pursuant to
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Local Rule 230(c) plaintiff was to file an opposition or statement of non-opposition to
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defendant’s motion “not less than fourteen (14) days preceding the noticed . . . hearing date.”
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Plaintiff, however, failed to file an opposition or statement of non-opposition to defendant’s
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motion.
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Accordingly, on December 15, 2016, 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. 32.) The order to show cause also ordered plaintiff to file a statement of opposition or
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non-opposition to defendant’s motion on or before January 13, 2017. Plaintiff was cautioned that
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failure to file a written response to that order could result in the undersigned recommending that
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this matter be dismissed. (Id. at 2.) Nonetheless, the time provided plaintiff has expired and
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plaintiff has not responded to the order to show 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, plaintiff failed to file a statement of opposition or non-opposition to defendant’s
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motion for summary judgment. The undersigned issued an order to show cause that provided
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plaintiff with an opportunity to show good cause for his conduct, along with a further opportunity
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to oppose defendant’s motion. Plaintiff failed to respond to that order in any way. The order to
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show cause specifically warned plaintiff that the failure to file a written response to that order
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could result in a recommendation that this matter be dismissed.
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Plaintiff’s 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, plaintiff’s 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 plaintiff’s failure to prosecute as well as his failure to comply with the court’s
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orders. See Fed. R. Civ. P. 41(b).
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Accordingly, IT IS HEREBY ORDERED that:
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1) The January 27, 2017 hearing of defendant’s motion is vacated; and
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2) Defendant’s November 21, 2016 motion for summary judgment (ECF No. 29) is
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denied without prejudice as having been rendered moot.1
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Also, IT IS HEREBY RECOMMENDED that:
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1) Plaintiff’s October 14, 2014 complaint (ECF No. 1) be dismissed without prejudice;
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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: January 18, 2017
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DLB:6
DB/orders/orders.pro se/ekunwe2410.dlop.f&rs
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In the event the assigned District Judge does not adopt these findings and recommendation,
defendant may re-notice its motion for summary judgment for hearing before the undersigned.
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