Buckley v. County of San Mateo et al

Filing 89

ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE. Signed by Judge Yvonne Gonzalez Rogers on 9/16/2016. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 9/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTONIO CORTEZ BUCKLEY,
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Case No. 14-cv-05448-YGR

Plaintiff,
ORDER DISMISSING CASE WITHOUT
PREJUDICE FOR FAILURE TO PROSECUTE

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v.
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COUNTY OF SAN MATEO, et al.,

Re: Dkt. No. 84

Defendants.

Northern District of California

United States District Court

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Plaintiff Antonio Cortez Buckley, proceeding pro se, brings this civil rights action against

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deputy sheriffs for the County of San Mateo. On July 29, 2016, defendants moved to dismiss the

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complaint under Federal Rule of Civil Procedure 41(b) based on plaintiff’s alleged failure to

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prosecute his action. (Dkt. No. 84.) In support of their motion defendants submitted evidence

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showing that plaintiff did not comply with Magistrate Judge Beeler’s order directing plaintiff to

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respond to defendants’ requests for production (see Dkt. No. 80) and did not appear at a settlement

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conference in front of Magistrate Judge Vadas (see Dkt. No. 82).

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Plaintiff’s response to defendants’ motion was due on or before August 12, 2016. Plaintiff

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failed to respond by the deadline. Then, on August 17, 2016, the Court issued a warning to plaintiff

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that it was considering dismissing his case for failure to prosecute and ordering him to file a written

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response by September 6, 2016 showing cause why defendants’ motion to dismiss should not be

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granted and the action dismissed. (Dkt. No. 85.) The Court further warned plaintiff that his failure to

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file a response would deemed an admission that the case should be dismissed as a result of his failure

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to prosecute under Rule 41(b). As of the date of this Order, plaintiff has not responded to defendants’

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motion or this Court’s order directing him to respond. Plaintiff has not filed any documents with the

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Court since July 1, 2016. (See Dkt. No. 77.)

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Pursuant to Rule 41(b), the Court may dismiss the action for failure to prosecute or to comply

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with a court order. Dismissal is appropriate where the failure to comply is unreasonable. McKeever

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v. Block, 932 F.2d 795, 797 (9th Cir. 1991). The Court should afford the litigant prior notice of its

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intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987).

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In this case, the Court warned plaintiff in its prior order dated August 17, 2016 that it would

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grant defendants’ motion to dismiss his lawsuit due to his failure to prosecute this action. Plaintiff has

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continued to miss deadlines and to date has not met his obligation to respond to defendants’ motion.

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Furthermore, it has been more than two months since plaintiff has communicated with the Court.

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Accordingly, the Court concludes it is in the interests of justice and judicial efficiency to dismiss this

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action pursuant to Rule 41(b). In that regard, defendants’ motion is GRANTED IN PART. Defendants’

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motion is DENIED IN PART to the extent defendants request monetary sanctions against plaintiff.

Northern District of California

United States District Court

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This action is DISMISSED WITHOUT PREJUDICE for failure to prosecute.

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This Order terminates Docket Number 84 and terminates this case.

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IT IS SO ORDERED.

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Date: September 16, 2016

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_________________________________________
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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