LAUREL BEELER, Magistrate Judge.
In this civil-rights lawsuit, the plaintiffs generally charge that two Antioch police officers used excessive force after an unlawful traffic stop when they punched and kicked plaintiff Randy McCon and pepper-sprayed his mother, plaintiff Leticia Saxton, in violation of the Fourth Amendment. The plaintiffs are Ms. Saxton and Mr. McCon, and Ms. Saxton also purports to bring the lawsuit as guardian ad litem on behalf of R.M., identified in the complaint as Mr. McCon's sister (and presumably, Ms. Saxton's daughter). The plaintiffs also bring a Monell claim against the City of Antioch.
The court held a hearing on August 2, 2018. Neither Ms. Saxton nor Mr. McCon appeared. The defendants' lawyer advised the court that Ms. Saxton may be ill. Under the circumstances, the court issues this order to address the procedural posture of the case and to order the plaintiffs to show cause why the court should not dismiss their case for their failure to prosecute it. The plaintiffs must respond in writing by August 16, 2018, and in person at a hearing that the court sets for August 23, 2018, at 9:30 a.m. The court is amenable to participation by telephone.
The following is relevant procedural history.
The plaintiffs filed their complaint on October 16, 2017, alleging excessive force on October 15, 2015.
During this time period, the court advised Ms. Saxton that she could not file an action on behalf of R.M. but could retain a lawyer and then be appointed R.M.'s guardian and bring a lawsuit on her behalf.
On April 10, 2018, a courtroom deputy spoke with Ms. Saxton about her opposition and the status of R.M.; Ms. Saxton said that she was working with the Legal Help Center and would file something by April 13, 2018.
On May 3, 2018, Ms. Saxton filed a notice of voluntary dismissal.
On July 19, 2018, the court issued an order to show cause warning the plaintiffs that they risked dismissal of their case for their failure to prosecute it; the court set a hearing for August 2, 2018, at 11:00 a.m.
At the August 2, 2018 hearing, the court discussed the pending motion to dismiss with the defendants' counsel, including the court's determination that the statute-of-limitations argument is an issue of fact that is best resolved at summary judgment.
"In determining the proper statute of limitations for actions brought under 42 U.S.C. § 1983, [courts] look to the statute of limitations for personal injury actions in the forum state." Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). The Ninth Circuit has held that California's two-year "statute of limitations for personal injury actions applies to § 1983 actions in federal court." Id. (citing Cal. Code Civ. P. § 335.1). A claim may be dismissed pursuant to a statute of limitations only when "the running of the statute is apparent on the face of the complaint." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006).
Here, the complaint charges that the incident happened on October 15, 2015.
For a host of reasons, the statute-of-limitation argument is better suited for a summary-judgment motion. The supporting evidence could be submitted in authenticated form. The court also would provide the appropriate notice of summary-judgment procedures. And, as discussed in the next sections, there is an existing notice of dismissal, which moots the motion as to Ms. Saxton, and there is the plaintiffs' failure to prosecute their case. For now, the court terminates the motion without prejudice to the defendants' reasserting the argument, probably in the form of an early summary-judgment motion.
Ms. Saxton filed a notice of dismissal. That terminates all claims that she purported to bring. As set forth in the Statement, she at one point said in a phone call with a courtroom deputy that she wanted to withdraw the dismissal. The court told her to file a one-page document to manifest that intent. She never did (despite follow-up phone calls) and reasserted her intent to stick with the dismissal.
A plaintiff may move for relief from a voluntary dismissal under Federal Rule of Civil Procedure 60(b). But relief is discretionary. See Eskridge v. Cook County, 577 F.3d 806, 810 (7th Cir. 2009).
Under the circumstances, the dismissal remains operative.
A separate ground for dismissal is the plaintiffs' failure to prosecute their case. The court issues this final order to show cause why the notice of dismissal (filed by Ms. Saxton) is not operative and why the court should not dismiss the case (against Mr. McCon) for his failure to prosecute it.
When a district court decides to impose sanctions or discipline, it must clearly delineate under which authority it acts to ensure that the attendant requirements are met. Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir. 1999) (citing Keegan Mgmt. Co. Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996) ("For a sanction to be validly imposed, the conduct must be sanctionable under the authority relied on.") (internal quotation marks and citation omitted)). "The imposition of sanctions requires a statement of reasons for the district court's action, including the need for the particular sanctions imposed." Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1081 (9th Cir. 2000) (citing G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 830 (10th Cir. 1990) ("If the district court ultimately imposes sanctions, detailed findings are necessary to identify the objectionable conduct and provide for meaningful appellate review.")).
Federal Rule of Civil Procedure 41(b) provides that if the plaintiff fails to prosecute or to comply with these rules or a court order, a court may use its inherent power to sua sponte dismiss the action or any claim against it as a means "to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962). Such an order to dismiss operates as adjudication on the merits. Fed. R. Civ. P. 41(b).
"Rule 41(b) specifically provides that the failure of the plaintiff to prosecute his claim is grounds for involuntary dismissal of the action. The courts have read this rule to require prosecution with `reasonable diligence' if a plaintiff is to avoid dismissal." Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (citing Ballew v. S. Pac. Co., 428 F.2d 787 (9th Cir. 1970)). "This court has consistently held that the failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure." Id. (internal citation omitted). "The law presumes injury from unreasonable delay." Id. (citing States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970)). "However, this presumption of prejudice is a rebuttable one and if there is a showing that no actual prejudice occurred, that factor should be considered when determining whether the trial court exercised sound discretion." Id. (citing Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974)).
In Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999), the Ninth Circuit applied the same five-factor standard considered in Federal Rules of Civil Procedure 37(b) case in a Rule 41(b) case. "Under our precedents, in order for a court to dismiss a case as a sanction, the district court must consider five factors: `(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.'" Id. at 990 (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986))). "We may affirm a dismissal where at least four factors support dismissal, or where at least three factors `strongly' support dismissal." Id. (some internal quotation marks and internal ellipsis omitted) (quoting Hernandez, 138 F.3d at 399). "Although it is preferred, it is not required that the district court make explicit findings in order to show that it has considered these factors and we may review the record independently to determine if the district court has abused its discretion." Id. (internal citation omitted).
Additionally, the Ninth Circuit has explained that "[t]his `test' is not mechanical." Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). "It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow:
Valley Eng'rs, Inc. v. Am. Home Ins. Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
Courts are invested with inherent powers that are "`governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link, 370 U.S. at 630-31).
Before ordering a terminating sanction, a court must warn the plaintiff and try other sanctions first. For example, a district court's failure to warn a party that dismissal is being considered as a sanction weighs heavily against the sanction. United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 605 (9th Cir. 1988). Although "[a]n explicit warning is not always required, at least in a case involving `egregious circumstances,'" "[i]n other circumstances, the failure to warn may place the district court's order in serious jeopardy." Id. (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 132-33 (9th Cir. 1987)). Indeed, "`[f]ailure to warn has frequently been a contributing factor in [Ninth Circuit] decisions to reverse orders of dismissal.'" Id. (quoting Malone, 833 F.2d at 133 (citing cases)).
The court has warned the plaintiffs that their failure to participate in their litigation risked the court's dismissal of their case. The procedural history set forth in the Statement demonstrates their failure to participate. The court sets a final show-cause hearing for August 23, 2018 at 9:30 a.m. and directs a written update by August 16, 2018 from all parties. The court warns that the plaintiffs' failure to appear at the August 23, 2018 hearing will result in the court's dismissal of the lawsuit.
The next hearing is August 23, 2018, at 9:30 a.m. The court will serve this order by U.S. mail to the addresses of record and will call Ms. Saxton on her telephone of record. If the parties want to appear by telephone, they must notify the undersigned's courtroom deputy by August 16, 2018, and the court will arrange to call the parties.
