Robben v. El Dorado County et al

Filing 29

ORDER signed by Magistrate Judge Kendall J. Newman on 11/8/2017 PARTIALLY GRANTING plaintiff's 27 motion for stay. This action is STAYED for 90 days. Ninety days from the date of this order, plaintiff shall file a motion to lift the stay accompanied by a proposed amended complaint. The Clerk shall administratively terminate this action and plaintiff is cautioned that failure to comply will result in the dismissal of this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TODD ROBBEN,

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Plaintiff,

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No. 2:16-cv-2697 JAM KJN P

v.

ORDER

EL DORADO COUNTY, et al.,

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Defendants.

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Plaintiff was formerly housed at the Rio Cosumnes Correctional Center and the El Dorado

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County Jail, but recently filed a change of address reflecting his transfer to the Sacramento

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County Jail. As previously noted, plaintiff was scheduled for judgment and sentencing on

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October 27, 2017 (ECF No. 26), and Sacramento County Superior Court records confirm that

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plaintiff was sentenced on October 27, 2017. People v. Robben, Case No. P17CRF0114 (Cal.)

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(Sacramento County). In his notice of change of address, plaintiff states that following

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sentencing, he has been retained in the Sacramento County Jail, but could be returned to the

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Placerville Jail at any time. All of his legal papers remain at the Placerville Jail. (ECF No. 28 at

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2.) On October 19, 2017, plaintiff filed a motion to stay this action because he was housed in the

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El Dorado County Jail and denied access to his legal materials. (ECF No. 27.)

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On June 8, 2017, plaintiff’s complaint was dismissed with leave to amend. Since that

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order, plaintiff has been granted multiple extensions of time in which to file an amended

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complaint. On September 26, 2017, the court found that plaintiff has not been diligently

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prosecuting the instant action, filed November 14, 2016, based on his recent request for medical

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records to amend the complaint to provide dates, names, and procedures to file his amended

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complaint. Indeed, Rule 11(c)(3) of the Federal Rules of Civil Procedure provides for the

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imposition of sanctions where a litigant has violated the following provisions:

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(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper--whether by signing, filing,
submitting, or later advocating it--an attorney or unrepresented
party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.

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Fed. R. Civ. P. 11(b). Moreover, the court has authority to dismiss an action for lack of

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prosecution under Federal Rule of Civil Procedure 41(b). See Chambers v. NASCO, Inc., 501

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U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure

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to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th

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Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure

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41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure

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or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to

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follow a district court’s local rules is a proper ground for dismissal”); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district
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court may dismiss an action for failure to comply with any order of the court”); Thompson v.

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Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that

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district courts have inherent power to control their dockets and may impose sanctions including

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dismissal or default).

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On the other hand, since June 8, 2017, plaintiff has been transferred three times, and does

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not have access to his legal materials while housed at the Sacramento County Jail. Although

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plaintiff has now been sentenced, he did not indicate what his sentence was, and it is unclear

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whether plaintiff will be returning to the El Dorado County Jail or if he will be committed to state

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prison.

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Therefore, plaintiff’s motion for stay is partially granted. This action is stayed for 90

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days. Ninety days from the date of this order, plaintiff shall file a motion to lift the stay,

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accompanied by his proposed amended complaint. If plaintiff fails to comply with this order, the

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undersigned will recommend that this action be dismissed without prejudice. Plaintiff is

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cautioned that he must keep this court apprised of his current address at all times. Local Rule

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183(b). Failure to do so will also result in the dismissal of this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for stay (ECF No. 27) is partially granted;

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2. This action is stayed for 90 days;

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3. Ninety days from the date of this order, plaintiff shall file a motion to lift the stay,

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accompanied by a proposed amended complaint;

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4. The Clerk of the Court is directed to administratively terminate this action; and

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5. Plaintiff is cautioned that failure to comply with this order will result in the dismissal

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of this action.

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Dated: November 8, 2017

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/robb2697.stay

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