Gomes v. Boone et al

Filing 43

ORDER vacating 40 FINDINGS AND RECOMMENDATIONS, signed by Magistrate Judge Deborah Barnes on 7/6/17. Defendants shall re-notice their motion for summary judgment for hearing before the undersigned. At the hearing of defendants' motion for s ummary judgment plaintiff shall be prepared to show cause as to why the undersigned should not sanction plaintiff in the amount of $250 for her repeated failure to comply with this court's orders and Local Rules, and for failing to timely prosecute this action. Plaintiff is cautioned that the failure to appear at the hearing of defendants motion for summary judgment may result in a sanction greater than $250.(Kastilahn, A)

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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.

ORDER

NICK BOONE, Placer County Probation
Officer; MR. WILLIAMS, employee at
Placer County Juvenile Detention Center;
PLACER COUNTY PROBATION
OFFICE; and Does 1through 20,
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 of 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, plaintiff again failed to file a timely opposition or a

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statement of non-opposition.

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Accordingly, on June 16, 2017, the undersigned issued an order and findings and

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recommendations denying defendants’ motion for summary judgment without prejudice and

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recommending that this action be dismissed without prejudice due to plaintiff’s failure to

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prosecute. (ECF No. 40.) On June 23, 2017, plaintiff filed an untimely opposition to defendants’

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motion for summary judgment. (ECF No. 41.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. The June 16, 2017 findings and recommendations (ECF No. 40) are vacated.

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2. Defendants shall re-notice their motion for summary judgment for hearing before the

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undersigned.

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3. Plaintiff shall appear in person at the hearing of defendants’ motion for summary

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judgment.

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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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4. At the hearing of defendants’ motion for summary judgment plaintiff shall be

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prepared to show cause as to why the undersigned should not sanction plaintiff in the

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amount of $250 for her repeated failure to comply with this court’s orders and Local Rules,

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and for failing to timely prosecute this action.

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5. Plaintiff is cautioned that the failure to appear at the hearing of defendants’

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motion for summary judgment may result in a sanction greater than $250.

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DATED: July 6, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:6
DB/orders/orders.pro se/gomes1546.vac.f&rs

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