Robert A. Cotton v. County of San Bernardino ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ROBERT A. COTTON, ) No. EDCV 18-2343-VAP (AGR) ) 12 Plaintiff, ) ) 13 v. ) ORDER TO SHOW CAUSE WHY THIS ) ACTION SHOULD NOT BE DISMISSED 14 COUNTY OF SAN BERNARDINO, et ) WITHOUT PREJUDICE FOR FAILURE al., ) TO PROSECUTE 15 ) Defendants. ) 16 ) ) 17 For the reasons discussed below, the Court orders Plaintiff to show cause, if 18 there be any, in writing on or before June 15, 2021, why this action should not be 19 dismissed without prejudice for failure to prosecute and/or comply with a court order. 20 A. Procedural History 21 On October 31, 2018, Plaintiff, proceeding pro se and in forma pauperis, filed a 22 civil rights complaint. Plaintiff sued the following 14 defendants: (1) County of San 23 Bernardino (“County”); (2) Sheriff John McMahon; (3) City of San Bernardino (“City”); 24 (4) San Bernardino Police Department (“SBPD”) Officer Barba; (5) SBPD Officer 25 Guzman; (6) SBPD Officer E. Thomas; (7) SBPD Lieutenant Pellis; (8) SBPD Sergeant 26 J. Echevarra; (9) SBPD Sergeant Arnola; (10) SBPD Officer S. Woolbright; (11) SBPD 27 Officer J. Gomez; (12) California Department of Motor Vehicles (“DMV”) Director Jean 28 1 Shiomoto; (13) A&G Towing, Inc.; and (14) American Towing Service, Inc. d/b/a 2 Armada Towing Service. (Dkt. No. 1.) 3 On December 4, 2018, the district court dismissed the complaint pursuant to the 4 screening provisions of the Prison Litigation Reform Act of 1995 (“PLRA”) without leave 5 to amend as to the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 6 claims against the County and City, and with leave to amend as to other claims. (Dkt. 7 No. 6.) 8 On January 7, 2019, Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 9 7.) On April 9, 2019, the district court dismissed all RICO claims and all claims against 10 Defendants Pellis and Barba with prejudice and without leave to amend. (Dkt. No. 8.) 11 The court directed the United States Marshal’s Service to serve the remaining 12 defendants with summons. (Dkt. No. 16.) 13 On November 19, 2019, Plaintiff filed a Second Amended Complaint (“SAC”). 14 (Dkt. No. 20.) Plaintiff named the same 14 defendants, including Pellis and Barba who 15 were previously dismissed from this action. On Defendants’ motion, the Court entered 16 an order as follows: 17 (1) The County Defendants’ motion to dismiss was granted as follows: (a) 18 Claims One through Five, Seven, Thirteen and Fifteen were dismissed with 19 leave to amend; and (b) Claims Twelve and Fourteen were dismissed 20 without leave to amend; 21 (2) The City Defendants’ motion to dismiss was granted in part and denied in 22 part as follows: (a) all federal and state claims against Defendants 23 Woolbright and Gomez were dismissed without leave to amend; (b) the 24 motion to dismiss Claim One was denied to the extent it asserts a Fourth 25 Amendment claim against Defendants Arnola, Echevarra, Guzman and 26 Thomas based on Plaintiff’s arrest; (c) the remainder of Claim One was 27 dismissed with leave to amend; (d) Claims Two through Five, Seven and 28 1 Fifteen were dismissed with leave to amend; and (e) Claims Eight through 2 Fourteen were dismissed without leave to amend; 3 (3) Defendant Shiomoto’s motion to dismiss was granted and all federal and 4 state claims against her were dismissed without leave to amend; 5 (4) Defendants Barba and Pellis were dismissed with prejudice from this 6 action. (Order dated April 9, 2019, Dkt. No. 8). 7 Plaintiff was granted leave to amend consistent with the Order but did not file a Third 8 Amended Complaint. (Order dated October 2, 2020, Dkt. No. 58.) 9 B. Discussion 10 The Court entered a scheduling order on January 25, 2021. (Order, Dkt. No. 65.) 11 The Court set a discovery cut-off date of August 25, 2021. The parties were ordered to 12 file status reports by April 26, 2021. 13 Plaintiff failed to file a status report by April 26, 2021 and did not request an 14 extension of time to do so. The City Defendants filed a timely status report. 15 The City Defendants served Plaintiff with discovery requests, including document 16 requests, interrogatories and requests for admissions, on February 25, 2021. The 17 proofs of service show service by mail to Plaintiff’s address of record. Plaintiff’s 18 responses were due on April 1, 2021. (Exh. A to Dkt. No. 72.) Having received no 19 responses, Defendants, by letter dated April 6,2021, on their own extended the time to 20 serve responses to April 16, 2021. The letter was sent by mail to Plaintiff’s address of 21 record and by email to his email address. (Exh. B to Dkt. No. 72.) Plaintiff did not serve 22 any responses or otherwise respond to Defendants’ letter. 23 Pursuant this Court’s procedures, Defendants requested a telephonic discovery 24 conference, which is required before a party may file a written discovery motion. The 25 court set a telephonic discovery conference on May 7, 2021 at 10:00 a.m., and required 26 that the parties file a joint agenda on or before May 6, 2021 by noon. (Dkt. No. 70.) On 27 May 4, 2021, Defendants sent Plaintiff an email with its proposed draft of a joint agenda 28 1 Northcutt Decl., Dkt. No. 72-4.) Having received no response from Plaintiff, Defendants 2 filed the agenda on their own. (Northcutt Decl.) 3 The Court held the telephonic discovery conference on May 7, 2021 at 10:00 a.m. 4 Defense counsel appeared. Plaintiff did not appear. The court and defense counsel 5 waited from 10:00 a.m. to 10:13 a.m. before commencing the discovery conference. 6 The court inquired as to whether defense counsel’s mailings to Plaintiff’s address of 7 record had been returned as undeliverable. Defense counsel answered no. The court 8 inquired whether defense counsel’s emails to Plaintiff’s email address had bounced 9 back. Defense counsel again answered no. The hearing was adjourned at 10:14 a.m., 10 and Plaintiff still had not appeared. The court stated that it will issue an order to show 11 cause by separate order. 12 It is well established that a district court has the authority to dismiss a plaintiff’s 13 action because of his failure to prosecute or comply with court orders. See Fed. R. Civ. 14 P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 15 2d 734 (1962) (court’s authority to dismiss for lack of prosecution is necessary to 16 prevent undue delays in the disposition of pending cases and avoid congestion in 17 district court calendars). 18 19 20 21 22 23 24 25 26 27 28 1 C. ORDER 2 Accordingly, IT IS ORDERED that, on or before June 15, 2027, Plaintiff shall 3|| show good cause, if there be any, in writing why this action should not be dismissed without prejudice for failure to prosecute and/or failure to comply with a court order. 5 If Plaintiff does not timely file a response to this Order to Show Cause or 6| otherwise respond to this Order to Show Cause on or before June 15, 2021, the 7| court will recommend that the action be dismissed without prejudice for 8| plaintiff's failure to prosecute and/or failure to comply with a court order. See 9] Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962). 10 " Wbias A Keenbng, 12 DATED: May 19, 2021 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28