Reyes v. City of Fairfield et al

Filing 41

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/18/2020 ORDERING that the 2/21/2020 status conference is VACATED. IT IS HEREBY RECOMMENDED that plaintiff's 8 Amended Complaint be dismissed without prejudice. Referred to Judge John A. Mendez.Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTIAN REYES,

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Plaintiff,

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No. 2:18-cv-0883 JAM DB PS

v.

ORDER AND
FINDINGS AND RECOMMENDATIONS

CITY OF FAIRFIELD, et al.,

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Defendants.

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Plaintiff Christian Reyes is proceeding in this action pro se. Accordingly, on December

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11, 2019, this matter was referred to the undersigned in accordance with Local Rule 302(c)(21)

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and 28 U.S.C. § 636(b)(1). (ECF No. 38.)
On December 30, 2019, the undersigned issued an order setting this matter for a status

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conference on January 31, 2020. (ECF No. 39.) Pursuant to the order plaintiff was to file a status

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report on or before January 17, 2020. (Id. at 2.) The order warned plaintiff that the failure to file

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a status report could result in a sanction. (Id.) Plaintiff, however, failed to file a timely status

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report.

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Accordingly, on January 23, 2020, the undersigned issued to plaintiff an order to show

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cause. (ECF No. 40.) Specifically, plaintiff was ordered to show cause in writing within fourteen

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days as to why this case should not be dismissed for lack of prosecution. (Id. at 2.) The status

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conference was also continued to February 21, 2020, and plaintiff was ordered to file a status
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report on or before February 7, 2020. (Id.) Plaintiff was warned that the “failure to timely

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comply” with that order “may result in a recommendation that this action be dismissed[.]” (Id.)

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Again, however, plaintiff failed to respond to the court’s order.

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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 to

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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 has repeatedly failed to file a status report. And plaintiff has repeatedly

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failed to respond to the orders of this court. Plaintiff was warned that the failure to file a written

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response to the court’s order could result in a recommendation that this matter be dismissed.

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Plaintiff, nonetheless, failed to respond to the court’s order.

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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 the February 21, 2020 Status Conference is
vacated.

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Also, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s May 14, 2018 amended complaint (ECF No. 8) be dismissed without

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prejudice; and
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: February 18, 2020

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:6
DB\orders\orders.pro se\reyes0883.dlop.f&rs

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