Colbert v. City of Merced ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM COLBERT, an individual, Case No. 1:19-cv-01294-JLT-HBK 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT 13 v. BE DISMISSED 14 CITY OF MERCED, ET. AL., FOURTEEN-DAY DEADLINE 15 Defendants. (Doc. Nos. 34, 35) 16 17 This matter comes before the Court upon periodic review of the file. Plaintiff, proceeding 18 with counsel, initiated this action by filing a 42 U.S.C. § 1983 civil rights complaint on 19 September 13, 2019 against City of Merced, BP America Inc.1, and police officers of the Merced 20 Police Department in their individual and official capacities alleging excessive force during 21 arrest, supervisory and municipal liability, violation of the Bane Act, assault and battery, 22 negligence, false imprisonment/illegal detention, false arrest, negligent infliction of emotional 23 distress, stemming from a March 12, 2018 incident at a gas station wherein the store clerk called 24 9-1-1. (See generally Doc. No. 1). On November 18, 2019, noting that Plaintiff had not filed 25 proof of service of the Complaint, the Court ordered Plaintiff to file proof of service or a status 26 27 1 Notably, the previously assigned magistrate judge granted the parties’ stipulated motion granting Plaintiffs leave to file a first amended complaint to substitute Defendant BP America, Inc. for Spa 28 Petroleum, Inc. five days after the stay is lifted in this case. (Doc. No. 13) 1 report indicating whether Plaintiff intended to prosecute the action. (Doc. No. 5). Plaintiff filed a 2 status report stating he expected proof of service by January 15, 2020 and would file the executed 3 summons by January 17, 2020. (Doc. No. 6). 4 Approximately one month later, the parties filed a stipulated motion to stay this action 5 pending Plaintiff’s criminal trial. (Doc. No. 8). The Court granted the parties’ stipulated motion 6 to stay but directed Plaintiff to provide status reports with updates on the underlying criminal case 7 every ninety days to Defendants and to the Court. (Doc. No. 9). Despite the order, the Court has 8 ordered Plaintiff’s counsel to provide the status updates no less than six times with the most 9 recent orders entered on November 7 and November 2022.2 (Doc. Nos. 10, 16, 18, 28, 34, 35). 10 Plaintiff has not responded to either the Court’s November 7, 2022 or November 21, 2022 Orders. 11 The Court possesses inherent authority to impose sanctions to manage its own affairs so as 12 to achieve the orderly and expeditious disposition of cases. Chambers v. NASCO, Inc., 501 U.S. 13 32, 43 (1991). The Court’s inherent power is that which is necessary to the exercise of all others, 14 including to protect the due and orderly administration of justice and maintain the authority and 15 dignity of the Court. Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). Further, Rule 1 16 places an affirmative duty on both the court and counsel to ensure the “just, speedy, and 17 inexpensive” determinations of federal cases. Fed. R. Civ. P. 1. 18 Based on the foregoing procedural history, the Court directs Plaintiff to show good cause 19 why this action should not be dismissed for failure to prosecute or comply with the Court’s orders 20 under Rule 41 and Local Rule 110. Federal Rule of Civil Procedure 41(b) permits the court to 21 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 22 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 23 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council 24 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 25 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 26 under certain circumstances.”); M.J.V. v. City of Avenal, Case No. 1:18-cv-00863-DAD-EPG 27 28 2 The current firm representing Plaintiff was substituted on February 1, 2022. (Doc. No. 28). 1 | (ED. Cal. Sept. 25, 2019), 2019 WL 4670860 (E.D. Cal. Sept. 25, 2019)(findings and 2 || recommendations to dismiss action without prejudice due to Plaintiff's counsel failure to 3 | prosecute). Local Rule 110 similarly permits the court to impose sanctions on a party who fails to 4 | comply with the court’s Rules or any order of court. 5 Accordingly, it is ORDERED: 6 1. Plaintiff shall show good cause why this action should not be dismissed under Rule 41 7 | and Local Rule 110 within fourteen (14) days from the date on this order. 8 2. Plaintiffs failure to timely respond and/or show good cause will result in the 9 | recommendation to the district court that this case be dismissed for Plaintiff’s failure to prosecute. 10 | Dated: __November 23, 2022 Wile. Th fares Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28