1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 ANTHONY MCGEE, Case No. 22-cv-09094-NC 11 Plaintiff, ORDER DISMISSING 12 PLAINTIFF’S CLAIMS FOR v. FAILURE TO PROSECUTE 13 UNDER FEDERAL RULE OF JOY, et al., CIVIL PROCEDURE 41(b) 14 Defendants. 15
16 On July 10, 2024, Plaintiff Anthony McGee failed to attend a third consecutive case 17 management conference in this matter. McGee alleges the Defendants, two Palo Alto 18 police officers, violated his constitutional rights. Despite numerous prompts by the Court 19 and warnings of potential consequences, McGee has not appeared or otherwise participated 20 in this matter since January 31, 2024. At the July 10 conference, Defendants orally moved 21 for involuntary dismissal under Federal Rule of Civil Procedure 41 for failure to prosecute. 22 Because McGee’s complete nonparticipation has halted all progress in this matter, the 23 Court grants the motion and DISMISSES McGee’s claims with prejudice. 24 I. BACKGROUND 25 Pro se Plaintiff Anthony McGee filed a complaint on December 23, 2023, along with 26 an in forma pauperis application to waive his filing fee. ECF 1, 2. McGee brought claims 27 under 42 U.S.C. § 1983 against the Palo Alto Police Department and Officers Joy and 1 Palo Alto in a later amendment. See ECF 34. 2 Because McGee sought a filing fee waiver, the Court screened his complaint under 28 3 U.S.C. § 1915. See ECF 10, 31, 35. In its final screening order, ECF 35, the Court 4 dismissed with prejudice the City of Palo Alto and Palo Alto Police Department, and 5 allowed McGee’s constitutional claims against Joy and Paneda to proceed. ECF 35. 6 Both parties appeared at a case management conference on June 21, 2023, to discuss 7 whether the case should be stayed pending the conclusion of McGee’s criminal case before 8 Senior District Court Judge Ed Chen, United States v. McGee, N.D. Cal. Case No. 12-cr- 9 52 EMC. See ECF 41, 42. The Court temporarily stayed the case pending the conclusion 10 of supervised release proceedings in McGee’s criminal matter. ECF 42. 11 Since June 21, 2023, the Court conducted three case management conferences. See 12 ECF 57 (February 7, 2024), 61 (June 12, 2024), 65 (July 10, 2024). McGee failed to 13 appear each time. See ECF 57, 61, 65. He also failed to file a case management statement 14 before the June 12 or July 10 conferences. See ECF 61, 65. 15 During this same period, McGee improperly contacted the Court ex parte twice, on 16 January 31 and June 13, 2024. See ECF 55, 62. Each time the Court warned McGee 17 against ex parte communication and instructed him on how to appropriately communicate 18 with the Court. 19 At the case management conference on July 10, 2024, Defendants orally moved for 20 involuntary dismissal under Federal Rule of Civil Procedure 41(b). The Court GRANTED 21 the motion for the reasons articulated below. 22 II. LEGAL STANDARD 23 Under Rule 41, “[i]f the plaintiff fails to prosecute or to comply with [the rules of 24 civil procedure] or a court order, a defendant may move to dismiss the action or any claim 25 against it.” Fed. R. Civ. P. 41(b). “Unless the dismissal order states otherwise, [this] 26 dismissal . . . operates as an adjudication on the merits.” Id. Courts deciding whether to 27 involuntary dismiss a plaintiff’s case must consider: “(1) the public’s interest in 1 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 2 merits and (5) the availability of less drastic sanctions.” Thompson v. Hous. Auth. of City 3 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). Before dismissing, Courts should 4 “warn the plaintiff that dismissal is imminent.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th 5 Cir. 1992). 6 III. DISCUSSION 7 Here, all five Thompson factors favor dismissal. See Thompson, 782 F.2d at 831. 8 Expeditious Resolution of Litigation and Docket Management. McGee’s failure 9 to prosecute this case prevents the expeditious resolution of this matter. McGee did not 10 appear at three straight case management conferences. See ECF 57, 61, 65. He did not file 11 case management statements for the later two of those conferences. From January 31, 12 2024, until now, McGee has not appeared or participated other than by sending improper 13 ex parte communication that the Court warned him against. 14 Additionally, rather than spending time moving this or other matters forward, the 15 Court and counsel for the Defendants have wasted time scheduling case management 16 conferences and then speaking into an empty phone line to see if McGee has appeared. In 17 sum, McGee’s complete nonparticipation not just slowed the resolution of this matter; it 18 stopped it completely. 19 Risk of Prejudice. Here, there is no question of risk of prejudice. Rather, McGee’s 20 failure to prosecute has already prejudiced Defendants, and additional attempts to engage 21 him in the process would likely prejudice them further. While McGee ghosted them, 22 Defendants prepared for and appeared three times for case management conferences. 23 Defendants are unlikely to ever recover these wasted costs because of the narrow 24 opportunities for Defendants to recover in 42 U.S.C. § 1983 actions. Alaska Right to Life 25 Pol. Action Comm. v. Feldman, 504 F.3d 840, 852 (9th Cir. 2007) (“A prevailing 26 defendant may recover attorneys’ fees when a § 1983 plaintiff’s claims are ‘groundless, 27 without foundation, frivolous, or unreasonable.’”). And, realistically, recovery is also 1 In addition to the prejudice to the Defendants, there is no indication McGee’s failure 2 to prosecute is due to excusable neglect. McGee understands how to file with the Court. 3 For example, before the Court even finished screening his complaint, McGee filed multiple 4 dispositive motions. See ECF 26, 33. And McGee initially responded to Court orders, 5 such as by filing an amended complaint after the Court’s screening orders. See ECF 14, 6 34. His compliance indicates receipt of Court orders and the ability to respond 7 accordingly. McGee also attended the first case management conference in this matter on 8 June 21, 2023, demonstrating he understood when the conference was and how to access 9 the Court’s conference phone line. See ECF 42. 10 Though McGee filed a notice of change of address after the June 21, 2023, 11 conference, his conduct shows he continued to receive notice of Court proceedings. 12 McGee communicated with the Court ex parte on January 31 and June 13, 2024. See ECF 13 55, 62. Additionally, McGee participated in a joint case management statement before the 14 February 7, 2024 conference. See ECF 54. McGee did not show “no sign of life at all.” 15 Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 757 (9th Cir. 2002) (Kozinski, J., 16 dissenting). On the contrary, McGee showed he was still aware of his case and its calendar 17 and did not participate. 18 Adjudication on the Merits. Here, McGee’s nonparticipation prevents adjudicating 19 this matter on the merits.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 ANTHONY MCGEE, Case No. 22-cv-09094-NC 11 Plaintiff, ORDER DISMISSING 12 PLAINTIFF’S CLAIMS FOR v. FAILURE TO PROSECUTE 13 UNDER FEDERAL RULE OF JOY, et al., CIVIL PROCEDURE 41(b) 14 Defendants. 15
16 On July 10, 2024, Plaintiff Anthony McGee failed to attend a third consecutive case 17 management conference in this matter. McGee alleges the Defendants, two Palo Alto 18 police officers, violated his constitutional rights. Despite numerous prompts by the Court 19 and warnings of potential consequences, McGee has not appeared or otherwise participated 20 in this matter since January 31, 2024. At the July 10 conference, Defendants orally moved 21 for involuntary dismissal under Federal Rule of Civil Procedure 41 for failure to prosecute. 22 Because McGee’s complete nonparticipation has halted all progress in this matter, the 23 Court grants the motion and DISMISSES McGee’s claims with prejudice. 24 I. BACKGROUND 25 Pro se Plaintiff Anthony McGee filed a complaint on December 23, 2023, along with 26 an in forma pauperis application to waive his filing fee. ECF 1, 2. McGee brought claims 27 under 42 U.S.C. § 1983 against the Palo Alto Police Department and Officers Joy and 1 Palo Alto in a later amendment. See ECF 34. 2 Because McGee sought a filing fee waiver, the Court screened his complaint under 28 3 U.S.C. § 1915. See ECF 10, 31, 35. In its final screening order, ECF 35, the Court 4 dismissed with prejudice the City of Palo Alto and Palo Alto Police Department, and 5 allowed McGee’s constitutional claims against Joy and Paneda to proceed. ECF 35. 6 Both parties appeared at a case management conference on June 21, 2023, to discuss 7 whether the case should be stayed pending the conclusion of McGee’s criminal case before 8 Senior District Court Judge Ed Chen, United States v. McGee, N.D. Cal. Case No. 12-cr- 9 52 EMC. See ECF 41, 42. The Court temporarily stayed the case pending the conclusion 10 of supervised release proceedings in McGee’s criminal matter. ECF 42. 11 Since June 21, 2023, the Court conducted three case management conferences. See 12 ECF 57 (February 7, 2024), 61 (June 12, 2024), 65 (July 10, 2024). McGee failed to 13 appear each time. See ECF 57, 61, 65. He also failed to file a case management statement 14 before the June 12 or July 10 conferences. See ECF 61, 65. 15 During this same period, McGee improperly contacted the Court ex parte twice, on 16 January 31 and June 13, 2024. See ECF 55, 62. Each time the Court warned McGee 17 against ex parte communication and instructed him on how to appropriately communicate 18 with the Court. 19 At the case management conference on July 10, 2024, Defendants orally moved for 20 involuntary dismissal under Federal Rule of Civil Procedure 41(b). The Court GRANTED 21 the motion for the reasons articulated below. 22 II. LEGAL STANDARD 23 Under Rule 41, “[i]f the plaintiff fails to prosecute or to comply with [the rules of 24 civil procedure] or a court order, a defendant may move to dismiss the action or any claim 25 against it.” Fed. R. Civ. P. 41(b). “Unless the dismissal order states otherwise, [this] 26 dismissal . . . operates as an adjudication on the merits.” Id. Courts deciding whether to 27 involuntary dismiss a plaintiff’s case must consider: “(1) the public’s interest in 1 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 2 merits and (5) the availability of less drastic sanctions.” Thompson v. Hous. Auth. of City 3 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). Before dismissing, Courts should 4 “warn the plaintiff that dismissal is imminent.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th 5 Cir. 1992). 6 III. DISCUSSION 7 Here, all five Thompson factors favor dismissal. See Thompson, 782 F.2d at 831. 8 Expeditious Resolution of Litigation and Docket Management. McGee’s failure 9 to prosecute this case prevents the expeditious resolution of this matter. McGee did not 10 appear at three straight case management conferences. See ECF 57, 61, 65. He did not file 11 case management statements for the later two of those conferences. From January 31, 12 2024, until now, McGee has not appeared or participated other than by sending improper 13 ex parte communication that the Court warned him against. 14 Additionally, rather than spending time moving this or other matters forward, the 15 Court and counsel for the Defendants have wasted time scheduling case management 16 conferences and then speaking into an empty phone line to see if McGee has appeared. In 17 sum, McGee’s complete nonparticipation not just slowed the resolution of this matter; it 18 stopped it completely. 19 Risk of Prejudice. Here, there is no question of risk of prejudice. Rather, McGee’s 20 failure to prosecute has already prejudiced Defendants, and additional attempts to engage 21 him in the process would likely prejudice them further. While McGee ghosted them, 22 Defendants prepared for and appeared three times for case management conferences. 23 Defendants are unlikely to ever recover these wasted costs because of the narrow 24 opportunities for Defendants to recover in 42 U.S.C. § 1983 actions. Alaska Right to Life 25 Pol. Action Comm. v. Feldman, 504 F.3d 840, 852 (9th Cir. 2007) (“A prevailing 26 defendant may recover attorneys’ fees when a § 1983 plaintiff’s claims are ‘groundless, 27 without foundation, frivolous, or unreasonable.’”). And, realistically, recovery is also 1 In addition to the prejudice to the Defendants, there is no indication McGee’s failure 2 to prosecute is due to excusable neglect. McGee understands how to file with the Court. 3 For example, before the Court even finished screening his complaint, McGee filed multiple 4 dispositive motions. See ECF 26, 33. And McGee initially responded to Court orders, 5 such as by filing an amended complaint after the Court’s screening orders. See ECF 14, 6 34. His compliance indicates receipt of Court orders and the ability to respond 7 accordingly. McGee also attended the first case management conference in this matter on 8 June 21, 2023, demonstrating he understood when the conference was and how to access 9 the Court’s conference phone line. See ECF 42. 10 Though McGee filed a notice of change of address after the June 21, 2023, 11 conference, his conduct shows he continued to receive notice of Court proceedings. 12 McGee communicated with the Court ex parte on January 31 and June 13, 2024. See ECF 13 55, 62. Additionally, McGee participated in a joint case management statement before the 14 February 7, 2024 conference. See ECF 54. McGee did not show “no sign of life at all.” 15 Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 757 (9th Cir. 2002) (Kozinski, J., 16 dissenting). On the contrary, McGee showed he was still aware of his case and its calendar 17 and did not participate. 18 Adjudication on the Merits. Here, McGee’s nonparticipation prevents adjudicating 19 this matter on the merits. Certainly, the Court would prefer for this case to proceed to an 20 eventual decision on the merits. With that goal in mind, the Court repeatedly warned 21 McGee about his nonparticipation and gave him ample opportunities to engage with the 22 judicial process. See ECF 58, 60. McGee did not engage, barring the Court and the 23 Defendants from pursuing a decision on the merits of this case. 24 Less Drastic Sanctions. Before considering dismissal, the Court employed the less 25 drastic sanctions available to it. The Court repeatedly warned McGee that not appearing or 26 prosecuting this matter could result in dismissal. After his first nonappearance, the Court 27 “cautioned that if he fails to prosecute this case, including by again failing to appear at a 1 || and award costs to the defendants.” ECF 58 at 1-2. After he again failed to appear, the 2 || Court warned that “[i]f McGee fails to prosecute this case or fails to comply with the 3 || Court’s order, the defendants may move for involuntary dismissal of this case under 4 || Federal Rule of Civil Procedure 41(b).” ECF 60. These warnings gave McGee fair notice 5 || of this potential outcome. See Oliva, 958 F.2d at 274. They also operated as less drastic 6 || sanctions that McGee, unfortunately, failed to heed. See Hamilton Copper & Steel Corp. 7 v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990) (“The district judge had several 8 || alternatives [to dismissal] available to him, including warnings about possible dismissal 9 || ....”’). Because McGee is pro se and proceeding in forma pauperis, other sanctions such 10 || as “a fine, the imposition of costs or attorney fees, [or] the temporary suspension . . . from 11 || practice before the court” were impractical or inapplicable. See id. 12 || IV. CONCLUSION 13 Because Plaintiff Anthony McGee failed to prosecute this case, the Court C 14 || DISMISSES his claims with prejudice under Rule 41 of the Federal Rules of Civil 3 15 || Procedure. This decision is an adjudication on the merits. See Fed. R. Civ. P. 41(b). 16 IT IS SO ORDERED. 17 || Dated: July 10, 2024 he ———— □ 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28