(PS) Reyes v. City of Fairfield ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTIAN REYES, No. 2:18-cv-0883 JAM DB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CITY OF FAIRFIELD, et al., 15 Defendants. 16 17 Plaintiff Christian Reyes is proceeding in this action pro se. Accordingly, on December 18 11, 2019, this matter was referred to the undersigned in accordance with Local Rule 302(c)(21) 19 and 28 U.S.C. § 636(b)(1). (ECF No. 38.) 20 On December 30, 2019, the undersigned issued an order setting this matter for a status 21 conference on January 31, 2020. (ECF No. 39.) Pursuant to the order plaintiff was to file a status 22 report on or before January 17, 2020. (Id. at 2.) The order warned plaintiff that the failure to file 23 a status report could result in a sanction. (Id.) Plaintiff, however, failed to file a timely status 24 report. 25 Accordingly, on January 23, 2020, the undersigned issued to plaintiff an order to show 26 cause. (ECF No. 40.) Specifically, plaintiff was ordered to show cause in writing within fourteen 27 days as to why this case should not be dismissed for lack of prosecution. (Id. at 2.) The status 28 conference was also continued to February 21, 2020, and plaintiff was ordered to file a status 1 report on or before February 7, 2020. (Id.) Plaintiff was warned that the “failure to timely 2 comply” with that order “may result in a recommendation that this action be dismissed[.]” (Id.) 3 Again, however, plaintiff failed to respond to the court’s order. 4 ANALYSIS 5 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 6 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 8 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 9 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 10 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 11 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 12 at 1260. 13 Failure of a party to comply with the any order of the court “may be grounds for 14 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 15 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 16 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 17 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 18 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 19 Rules. Id. 20 Here, plaintiff has repeatedly failed to file a status report. And plaintiff has repeatedly 21 failed to respond to the orders of this court. Plaintiff was warned that the failure to file a written 22 response to the court’s order could result in a recommendation that this matter be dismissed. 23 Plaintiff, nonetheless, failed to respond to the court’s order. 24 Plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions 25 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 26 manage its docket, and the risk of prejudice to the defendant all support the imposition of the 27 sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 28 dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on 1 the merits an impossibility. The undersigned will therefore recommend that this action be 2 dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply with the 3 court’s orders. See Fed. R. Civ. P. 41(b). 4 Accordingly, IT IS HEREBY ORDERED that the February 21, 2020 Status Conference is 5 vacated. 6 Also, IT IS HEREBY RECOMMENDED that: 7 1. Plaintiff’s May 14, 2018 amended complaint (ECF No. 8) be dismissed without 8 prejudice; and 9 2. This action be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: February 18, 2020 19 20 /s/ DEBORAH BARNES 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 DLB:6 DB\orders\orders.pro se\reyes0883.dlop.f&rs 28