Gomes v. Boone et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/15/2017; DENYING as MOOT 35 Motion for Summary Judgment; and VACATING the 6/23/2017 hearing. RECOMMENDING the 1 Complaint be DISMISSED without prejudice; and this action be CLOSED. Referred to District Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Washington, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MORGAN MARIE GOMES,
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No. 2:15-cv-1546 TLN DB PS
Plaintiff,
v.
NICK BOONE, Placer County Probation
Officer; MR. WILLIAMS, employee at
Placer County Juvenile Detention Center;
PLACER COUNTY PROBATION
OFFICE; and Does 1through 20,
ORDER AND
FINDINGS AND RECOMMENDATIONS
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 March 7, 2017, defendants filed a motion for summary judgment and noticed that
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motion for hearing before the undersigned on April 7, 2017. (ECF No. 35.) Pursuant to Local
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Rule 230(c) plaintiff was to file an opposition or a statement of non-opposition to defendants’
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motion “not less than fourteen (14) days preceding the noticed . . . hearing date.” Plaintiff,
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however, failed to file a timely opposition or statement of non-opposition.
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Accordingly, on March 31, 2017, the court issued an order to show cause, ordering
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plaintiff to show cause in writing within fourteen days as to why this action should not be
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dismissed for lack of prosecution, as well as ordering plaintiff to file a statement or opposition or
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non-opposition to defendants’ motion for summary judgment on or before May 12, 2017.1 (ECF
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No. 36.) That order also continued the hearing of defendants’ motion for summary judgment to
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May 26, 2017. On April 13, 2017, plaintiff filed a response to the order to show cause. (ECF No.
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37.)
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On May 12, 2017, plaintiff filed a motion for a three-day extension of time to file her
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opposition. (ECF No. 38.) On May 24, 2017, the undersigned issued an order discharging the
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March 31, 2017 order to show cause, continuing the hearing of defendants’ motion to June 23,
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2017, and ordering plaintiff to file a statement of opposition or non-opposition to defendants’
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motion for summary judgment on or before June 9, 2017. (ECF No. 39 at 2.) Plaintiff was
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warned that the failure to timely comply with that order could result in a recommendation that
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this case be dismissed. (Id.) Nonetheless, the time provided plaintiff has expired and plaintiff has
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not filed an opposition or a statement of non-opposition.
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ANALYSIS
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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.
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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This was the second time plaintiff had been issued an order to show cause as a result of her
failure to prosecute this action. See ECF No. 28.
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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 has failed to file a statement of opposition or non-opposition to defendants’
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motion for summary judgment. Plaintiff has been given more than sixty days to file a statement
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of opposition or non-opposition to defendants’ motion. On May 24, 2017, the undersigned
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ordered plaintiff to file a statement of opposition or non-opposition to defendants’ motion on or
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before June 9, 2017. Plaintiff has failed to respond to that order in any way. That order
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specifically warned plaintiff that the failure to file a written response to that order could result in a
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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 plaintiff’s 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) Defendants’ March 7, 2017 motion for summary judgment (ECF No. 35) is denied
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without prejudice as having been rendered moot.2
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2) The June 23, 2017 hearing of defendants’ motion for summary judgment is vacated.
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Also, IT IS HEREBY RECOMMENDED that:
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1) Plaintiff’s July 17, 2015 complaint (ECF No. 1) be dismissed without prejudice; and
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2) This action be closed.
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In the event the assigned District Judge does not adopt these findings and recommendations,
defendants may re-notice their motion for summary judgment for hearing before the undersigned.
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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: June 15, 2017
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DLB:6
DB/orders/orders.pro se/gomes1546.dlop.f&rs
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