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Khalid Lanier v. City of Fresno

March 27, 2012

KHALID LANIER,
PLAINTIFF,
v.
CITY OF FRESNO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED OBJECTIONS DUE: 21 DAYS

I. INTRODUCTION

On January 19, 2012, the Court issued an order (Doc. 81) continuing the scheduling conference in this action to March 6, 2012, and requiring Plaintiff Khalid Lanier ("Plaintiff"), currently representing himself in propria persona, to contact counsel for Defendant Officer Castillo ("Officer Castillo") to meet and confer regarding the issues at question in the scheduling conference, as required pursuant to the Court's Order Setting Mandatory Scheduling Conference (Doc. 5-1).

On February 28, 2012, Officer Castillo filed a separate scheduling report, indicating that "Plaintiff ha[d] failed to meet and confer with Defendant's counsel regarding the joint scheduling order and to provide Defendant's counsel with his contact information." (Doc. 82, 3:11-13.)

On March 1, 2012, the Court issued an order to show cause as to why Plaintiff's action should not be dismissed for failure to comply with the Court's orders. (Doc. 83.) The order to show cause was served on Plaintiff via U.S. mail on March 1, 2012, and was returned to the Court as undeliverable, unable to forward, on March 12, 2012.

For the reasons set forth below, the Court RECOMMENDS that Plaintiff's claim be dismissed pursuant to Local Rule 110 for Plaintiff's failure to obey the Court's orders.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 2010, Plaintiff, then represented by counsel, filed a complaint against Defendants City of Fresno ("City"), Officer Castillo, Officer Stephen Taylor ("Officer Taylor"), and County of Fresno ("County" or, collectively, "Defendants"). (Doc. 1.) Plaintiff alleged that he had been driving a vehicle on June 20, 2008, "which, unbeknownst to him, had been stolen by his girlfriend and passenger, Carol Schumann" ("Ms. Schumann"). (Doc. 1, ¶ 16.) Plaintiff asserted that he was unaware of the stolen status of the vehicle, or that Ms. Schumann was "in possession of a firearm," until a police car indicated that he should "pull over." (Doc. 1, ¶ 16.) Plaintiff alleged that he exited the freeway and "proceeded for several blocks until he parked the [vehicle] in the vicinity of the Twilight Haven retirement home." (Doc. 1, ¶ 17.) Plaintiff contended that, although he was attempting to "surrender peaceably to the officers," the officers "deliberately collided the front of their vehicle with the front driver side" of the vehicle Plaintiff had been driving. (Doc. 1, ¶¶ 17-18.) "[P]erceiving that the police officers intended to drive their squad car directly" into Plaintiff's vehicle, Plaintiff "fled from the vehicle he had been driving, narrowly escaping." (Doc. 1, ¶ 19.) Plaintiff then "ran into a neighboring building, followed by Officer Castillo." (Doc. 1, ¶ 20.) Plaintiff alleged that he "again attempted to surrender to Officer Castillo," but Officer Castillo "shot Plaintiff . . . in the back." (Doc. 1, ¶ 20.)

On October 8, 2010, District Judge Lawrence J. O'Neill granted Defendants' motions to dismiss and allowed Plaintiff leave to amend. (Docs. 21, 22.) Plaintiff filed a first amended complaint on October 19, 2010, alleging the same facts as above. (Doc. 23, ¶¶ 16-20.) On December 9, 2010, Judge O'Neill granted in part Defendants' motion to dismiss, dismissing with prejudice the claims against Officer Taylor, City, and County, but permitting certain claims against Officer Castillo to proceed. (Doc. 31.) On January 18, 2011, Judge O'Neill denied Plaintiff's motion for reconsideration and corrected the claims remaining in effect against Officer Castillo. (Doc. 40.)

On February 25, 2011, Plaintiff filed a motion for relief from judgment and to amend, which was denied by Judge O'Neill on March 22, 2011. (Docs. 45, 50.)

On November 30, 2011, the Court granted the motion to withdraw as attorney of record brought by Plaintiff's former counsel. (Doc. 74.) The Court ordered that if Plaintiff obtained new counsel, such new counsel must file an appearance by no later than January 17, 2012. (Doc. 74.) Alternatively, Plaintiff was ordered to notify the Court if he would be proceeding in propria persona. (Doc. 74.) Plaintiff did not file any notice regarding his representation, nor did new counsel file a substitution of attorney with the Court. The Court had indicated, however, that if Plaintiff failed to file any notice, the Court would find that Plaintiff had elected to represent himself. (Doc. 74.)

The Court ordered that a joint scheduling report be filed by no later than January 17, 2012, for a status conference set for January 24, 2012. (Doc. 74.) On January 17, 2012, Officer Castillo filed his amended scheduling conference report, stating that Plaintiff, representing himself in propria persona, had not responded. (Doc. 80.)

On January 19, 2012, the Court issued an order (Doc. 81) continuing the scheduling conference to March 6, 2012, and ordering Plaintiff to contact counsel for Officer Castillo to meet and confer regarding the issues at question in the scheduling conference, as required pursuant to the Court's Order Setting Mandatory Scheduling Conference (Doc. 5-1). Plaintiff was informed that "[a] party representing himself in propria persona is required to comply with the Federal Rules of Civil Procedure, the Local Rules of this Court, and all Court orders" and that "[t]he Court's Order Setting Mandatory Scheduling Conference, issued on June 22, 2010, requires all parties to meet and confer prior to submitting a joint scheduling report." (Doc. 81, 2:3-11; see also Doc. 5-1.) Plaintiff was also ordered to provide the Court and Defendant's counsel with his contact information, including a telephone number. (Doc. 81, p. 2.) Plaintiff was "cautioned that failure to comply with the Court's order may result in the imposition of sanctions, including dismissal of his action." (Doc. 81, 2:21-22.) The Court's January 19, 2012, order was served on Plaintiff via U.S. mail; the mailing was not returned.

On February 28, 2012, Officer Castillo filed a separate scheduling report, indicating that "Plaintiff has failed to meet and confer with Defendant's counsel regarding the joint scheduling order and failed to provide Defendant's counsel with his contact information." (Doc. 82, 3:11-13.) Plaintiff also failed to provide the Court with his contact information as required in the January 19, 2012, order. (Doc. 81, 2:19-20.) On March 1, 2012, the Court issued an order to show cause as to why Plaintiff's action should not be dismissed for failure to comply with the Court's order and vacated the scheduling conference. ...


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