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 2020-05

Randy Wiggins v. United States Government ( 2020 )


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  •                             NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                         MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDY WIGGINS,                                    No. 18-55529
Plaintiff-Appellant,              D.C. No. 2:16-cv-08309-PSG-FFM
v.
MEMORANDUM*
UNITED STATES GOVERNMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted May 6, 2020**
Before:      BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Randy Wiggins appeals pro se from the district court’s order dismissing his
Federal Tort Claims Act action. We have jurisdiction under 28 U.S.C. § 1291. We
review for an abuse of discretion a district court’s dismissal under its local rules.
Ghazali v. Moran,
    46 F.3d 52
    , 53 (9th Cir. 1995). We vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court dismissed Wiggins’s action sua sponte because Wiggins
failed to oppose defendant’s motion to dismiss. However, Wiggins’s application
for default judgment was pending at the time of the dismissal, and the record does
not indicate that the district court warned Wiggins that failure to oppose the motion
to dismiss would result in dismissal, or considered less drastic alternatives to
dismissal. See Oliva v. Sullivan,
    958 F.2d 272
    , 274 (9th Cir. 1992) (“The district
judge has an obligation to warn the plaintiff that dismissal is imminent.”);
Thompson v. Housing Auth.,
    782 F.2d 829
    , 831-32 (9th Cir. 1986) (stating that
dismissal is a “severe remedy,” and affirming dismissal where district court had
given plaintiff abundant opportunity to comply with its orders and local rules). We
therefore vacate the district court’s order sua sponte dismissing this action and
remand for further proceedings consistent with this disposition.
Wiggins’s motion for summary reversal and to expedite the case is denied as
moot.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
2                                   18-55529