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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ANTONIO CORTEZ BUCKLEY, 7 Case No. 14-cv-05448-YGR Plaintiff, ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 8 v. 9 10 11 COUNTY OF SAN MATEO, et al., Re: Dkt. No. 84 Defendants. Northern District of California United States District Court 12 Plaintiff Antonio Cortez Buckley, proceeding pro se, brings this civil rights action against 13 deputy sheriffs for the County of San Mateo. On July 29, 2016, defendants moved to dismiss the 14 complaint under Federal Rule of Civil Procedure 41(b) based on plaintiff’s alleged failure to 15 prosecute his action. (Dkt. No. 84.) In support of their motion defendants submitted evidence 16 showing that plaintiff did not comply with Magistrate Judge Beeler’s order directing plaintiff to 17 respond to defendants’ requests for production (see Dkt. No. 80) and did not appear at a settlement 18 conference in front of Magistrate Judge Vadas (see Dkt. No. 82). 19 Plaintiff’s response to defendants’ motion was due on or before August 12, 2016. Plaintiff 20 failed to respond by the deadline. Then, on August 17, 2016, the Court issued a warning to plaintiff 21 that it was considering dismissing his case for failure to prosecute and ordering him to file a written 22 response by September 6, 2016 showing cause why defendants’ motion to dismiss should not be 23 granted and the action dismissed. (Dkt. No. 85.) The Court further warned plaintiff that his failure to 24 file a response would deemed an admission that the case should be dismissed as a result of his failure 25 to prosecute under Rule 41(b). As of the date of this Order, plaintiff has not responded to defendants’ 26 motion or this Court’s order directing him to respond. Plaintiff has not filed any documents with the 27 Court since July 1, 2016. (See Dkt. No. 77.) 28 1 Pursuant to Rule 41(b), the Court may dismiss the action for failure to prosecute or to comply 2 with a court order. Dismissal is appropriate where the failure to comply is unreasonable. McKeever 3 v. Block, 932 F.2d 795, 797 (9th Cir. 1991). The Court should afford the litigant prior notice of its 4 intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987). 5 In this case, the Court warned plaintiff in its prior order dated August 17, 2016 that it would 6 grant defendants’ motion to dismiss his lawsuit due to his failure to prosecute this action. Plaintiff has 7 continued to miss deadlines and to date has not met his obligation to respond to defendants’ motion. 8 Furthermore, it has been more than two months since plaintiff has communicated with the Court. 9 Accordingly, the Court concludes it is in the interests of justice and judicial efficiency to dismiss this 10 action pursuant to Rule 41(b). In that regard, defendants’ motion is GRANTED IN PART. Defendants’ 11 motion is DENIED IN PART to the extent defendants request monetary sanctions against plaintiff. Northern District of California United States District Court 12 This action is DISMISSED WITHOUT PREJUDICE for failure to prosecute. 13 This Order terminates Docket Number 84 and terminates this case. 14 IT IS SO ORDERED. 15 Date: September 16, 2016 16 _________________________________________ 17 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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