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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 M.J.V., individually and as successor-in- Case No. 1:18-cv-00863-DAD-EPG interest to Decedent Sergio Velasco 12 Martinez and by and through his guardian FINDINGS AND RECOMMENDATIONS ad litem, LIDIA JACINTO. RECOMMENDING THAT PLAINTIFF’S CASE 13 BE DISMISSED WITHOUT PREJUDICE FOR Plaintiff, FAILURE TO PROSECUTE 14

v. 15 (ECF NO. 16) CITY OF AVENAL, et al., 16 Defendants. 17

18 Minor Plaintiff M.J.V., individually and as successor-in-interest to Decedent Sergio 19 Velasco Martinez (“Plaintiff”), by and through his guardian ad litem, Lidia Jacinto (“Jacinto”), 20 brings this suit against the City of Avenal and Does 1 through 25 (“Defendants”), pursuing causes 21 of action under 42 U.S.C. § 1983 and state law stemming from Decedent Sergio Velasco 22 Martinez’s death, allegedly at the hands of Avenal police officers. (ECF No. 1.) 23 On December 21, 2018, Plaintiff filed an application for the appointment of his biological 24 mother, Lidia Jacinto, as his guardian ad litem in this matter. (ECF No. 12.) The Court granted 25 the motion on December 30, 2018. (ECF No. 13.) 26 The Court set a mid-discovery status conference for June 17, 2019. On June 10, 2019, 27 Defendants filed a unilateral mid-discovery status report in which they represented that Plaintiff’s 28 1 counsel had been unable to contact Plaintiff and Jacinto and would be seeking to withdraw from 2 the case. (ECF No. 14.) At the mid-discovery status conference, Plaintiff’s counsel represented 3 that he was unable to contact Jacinto and did not know her location. Plaintiff’s counsel 4 represented that this inability to contact Jacinto had stalled the discovery process. 5 On June 17, 2019, following the mid-discovery status conference, the Court issued an Order 6 for Plaintiff to show cause (“OSC”) why this matter should not be dismissed for failure to prosecute. 7 (ECF No. 16.) 8 Plaintiff’s counsel submitted a response on July 17, 2019, in which he represented that 9 there was “continued difficulty contacting the Guardian ad Litem Lidia Jacinto, which has stalled 10 the parties’ discovery efforts.” (ECF No. 17, p. 2.) More specifically, Plaintiff’s counsel stated 11 that “Lidia Jacinto’s native language is Spanish, and she has considerable difficulty understanding 12 English,” and that shortly after this action was filed, Plaintiff’s counsel “lost contact with her” 13 and has been unable to communicate with her since then. (Id.) Plaintiff’s counsel also explained 14 that he retained the services of a private investigator to locate Jacinto, but the private investor was 15 unable to contact her. Plaintiff’s counsel also sent several letters in Spanish to Jacinto—again 16 without success. Plaintiff’s counsel further argued that the action could not be dismissed “because 17 the claims of a minor are at stake.” (Id.) 18 Defendants also filed a response to the OSC. Defendants maintain that Plaintiff’s counsel 19 misrepresented to the Court that he lost contact with Plaintiff shortly after the filing of the 20 Complaint on June 21, 2018. Defendants point out that Plaintiff’s counsel filed an application for 21 guardian ad litem on December 21, 2018, which purports to bear Lidia Jacinto’s signature. 22 Without wading into the dispute regarding Plaintiff counsel’s contact with Jacinto, the Court 23 finds it apparent that communication issues have prevented the prosecution of this case. 24 It is well-established that a district court may sua sponte dismiss an action where a 25 plaintiff has failed to comply with a court order and/or unreasonably failed to prosecute. See Link 26 v. Wabush Railroad Co., 370 U.S. 626, 629-33 (1962); McKeever v. Block, 932 F.2d 795, 797 27 (9th Cir. 1991). “A district judge is required to weigh several factors in determining whether to 28 dismiss a case for lack of prosecution.” Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). 1 These factors include: “(1) the public’s interest in expeditious resolution of litigation; (2) the 2 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 3 favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. 4 The above factors favor dismissal here. The first two factors—the public’s interest in 5 expeditiously resolving this litigation and the Court’s interest in managing the docket—weigh in 6 favor of dismissal. The Court cannot hold this case in abeyance indefinitely waiting for Plaintiff, 7 through the guardian ad litem, to participate in discovery and prosecute this case. The third 8 factor, risk of prejudice to defendant, also weighs in favor of dismissal since a presumption of 9 injury arises from the unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 10 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition of 11 cases on their merits, is outweighed by the factors in favor of dismissal discussed herein. Finally, 12 as Plaintiff has been cautioned of the consequences of a failure to prosecute and to comply with 13 the OSC, has been afforded the opportunity to do so, and has not done so in the months since the 14 OSC was issued, no sanction lesser than dismissal is feasible. 15 However, the Court notes that “[t][he infant is the ward of every court wherein his rights 16 or property are brought into jeopardy, and is entitled to the most jealous care that no injustice be 17 done to him.” Osei-Afriyie v. Medical College, 937 F.2d 876, 882-83 (3d Cir. 1991). Based on 18 that principle, the Ninth Circuit has instructed that a minor should not be prejudiced by the failure 19 of his/her guardian ad litem to comply with court orders. See Johns v. County of San Diego, 114 20 F.3d 874, 877 (9th Cir. 1997) (finding that dismissal of minor’s case for failure of guardian ad 21 litem to obey court order should have been without prejudice). Thus, the Court recommends that 22 any dismissal here be without prejudice, thereby giving Plaintiff a further opportunity to file this 23 action at some later time within the statute of limitations period. 24 Accordingly, for the reasons set forth herein, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiff’s case be dismissed without prejudice for failure to prosecute; and that 26 2. The Clerk of Court be instructed to close this case. 27 These findings and recommendations are submitted to the district judge assigned to the 28 case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being 1 | served with these findings and recommendations, Plaintiff may file written objections with the 2 | Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 3 | Recommendations.” Plaintiff is advised that the failure to file objections within the specified time 4 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler,772 F.3d 834, 839 (9th Cir. 5 | 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 5 IT IS SO ORDERED.

8 | Dated: _ September 25, 2019 [sf hey □ 9 UNITED STATES MAGISTRATE JUDGE

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