Unpublished Disposition, 865 F.2d 263 (9th Cir. 1988)

MEMORANDUM^** 

Claiming to be a victim of racial discrimination, appellant Frances Childs sued her employer, the Los Angeles Department of Water and Power (DWP), and her collective bargaining representative and its parent organization, Local 18 and the International Brotherhood of Electrical Workers (IBEW). Her complaint included two causes of action. In the first, she alleged that Local 18 and the IBEW breached their duty of fair representation by failing to properly represent her in her conflicts with DWP. In the second, she alleged that all defendants had conspired to interfere with her civil rights, in violation of 42 U.S.C. §§ 1983, 1985(2), and 1985(3) (1982).

The district court granted the union appellees' motion for summary judgment on May 27, 1986, on the ground that Childs' claims against Local 18 and the IBEW were time-barred. Childs filed a notice of appeal on June 3, 1986, and an opening brief on March 16, 1987, but because her claims against DWP were still pending, we dismissed her appeal as premature. No. 86-5996 (9th Cir. June 23, 1987).

While she was attempting to appeal, Childs did not proceed against DWP. On July 11 and November 7, 1986, the district court ordered her to file status reports indicating her readiness for trial. Her July 22 status report did not mention whether or not she was prepared to proceed to trial; she apparently did not respond to the second order. On September 14, 1987, the district court ordered Childs to show cause why her action against DWP should not be dismissed for failure to prosecute. At a hearing held on October 6, Childs explained that she did not intend to proceed to trial against DWP while her appeal was pending. (At that point, she had filed a motion in this court for a stay of this court's mandate and had apparently filed a motion in the Supreme Court for an extension of time in which to file a certiorari petition). The district court dismissed Childs' action against DWP on December 29, 1987, for failure to prosecute. Childs then appealed this dismissal and the grant of summary judgment in favor of the union appellees. We affirm.

A district court has the inherent power to dismiss a case sua sponte for lack of prosecution. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). We review such a dismissal for abuse of discretion. Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir. 1987). In determining whether an abuse has occurred, we consider a number of factors, including the plaintiff's diligence, the district court's need to manage its docket, the danger of prejudice to the defendant, the availability of alternative sanctions, the public interest in expeditious resolution of litigation, and the existence of appropriate warnings by the district court that dismissal is imminent. Id.; Henderson, 779 F.2d at 1423.

All but the third of these factors cut sharply against Childs. From May 1986, when summary judgment was granted in favor of the union appellees, to December 1987, when her case against DWP was dismissed, Childs made no effort to proceed to trial. Despite three warnings from the district court, Childs consistently refused to take any action against DWP while her appeal of the summary judgment grant was pending. Sanctions less drastic than dismissal would have been unavailing in the face of Childs' steadfast and unwarranted determination to await the results of her appeal.

Although the district court made no finding that DWP would be prejudiced by continued delay, the absence of such a finding does not automatically render dismissal an abuse of discretion. Henderson, 779 F.2d at 1425. Where counsel (or, in this case, a litigant proceeding pro se) persists in causing unreasonable delay, lack of prejudice to the defendant is not an obstacle to dismissal. See id. The district court's dismissal of Childs' cause of action against DWP for want of prosecution was a proper exercise of its discretion.

II. The Causes of Action Against the Union Appellees

The district court found that both causes of action against the union appellees were barred by the statute of limitations, and accordingly granted the union appellees' motion for summary judgment as to both claims. We review de novo a grant of summary judgment. Danner v. Himmelfarb, No. 87-6021, slip op. at 12099, 12102 (9th Cir. Sept. 28, 1988).

A. Breach of the Union's Duty of Fair Representation

Where a plaintiff asserts a breach of a union's duty of fair representation, the limitations period begins to run when the plaintiff knows or has reason to know that the union will not pursue her grievance. McNaughton v. Dillingham Corp., 707 F.2d 1042, 1047 (9th Cir. 1983), aff'd on rehearing, 722 F.2d 1459 (9th Cir.), cert. denied, 469 U.S. 916 (1984). According to Childs' own complaint, she became aware of the failure of Local 18 and the IBEW to take any action on her behalf in 1976. Childs did not file her complaint until 1984. Under either the three-year statute of limitations in effect at the time the claim arose, Price v. Southern Pac. Transp. Co., 586 F.2d 750 (9th Cir. 1978), or the six-month statute of limitations in effect at the time the claim was filed, DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983), it is clear that Childs' duty of fair representation claim is time-barred. Her assertion that article III, section 2 of the Constitution tolls the statute of limitations is unfounded.

B. Conspiracy to Interfere With Civil Rights

The limitations period for a cause of action for conspiracy to interfere with a person's civil rights runs separately from each overt act alleged to have caused such interference. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). While the dates of the overt acts alleged by Childs are sometimes unclear, it is apparent that at least some of them, including the dismantling of Childs' work station and the posting of offensive drawings on her work equipment, occurred in early 1984.

The limitations period for claims brought under section 1983 is the forum state's limitations period for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). In California the period is one year. Cal.Civ.Proc.Code Sec. 340(3) (West Supp.1988). Because Childs' claim arose before Wilson was decided, however, the applicable period is the first to expire of (1) the three-year pre-Wilson period, Compton v. Ide, 732 F.2d 1429, 1432 (9th Cir. 1984), commencing when the cause of action arose, or (2) the one-year post-Wilson period, commencing with the Wilson decision. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Childs filed her complaint before either period expired; the district court thus erred in ruling that her section 1983 claim is time-barred.

The limitations period for section 1985 claims filed in California before Wilson was decided is three years. See Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir. 1988). Childs' claim under section 1985 is thus not time-barred either.

We may, however, affirm a grant of summary judgment on any ground supported by the record before the district court at the time of the ruling. Jewel Cos. v. Pay Less Drug Stores Northwest, Inc., 741 F.2d 1555, 1564-65 (9th Cir. 1984). We find that summary judgment was properly granted, because Childs has presented no evidence indicating that the union appellees participated in any conspiracy or acted under color of state law.

A cause of action under section 1985(2) or section 1985(3) requires the existence of a conspiracy. See United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828 (1983). Childs testified in a series of depositions that she had been the victim of a number of incidents of harassment while working at DWP, but presented no evidence indicating that any of the DWP employees and managers allegedly involved were acting on behalf of either of the union appellees. There is no evidence in the record suggesting that Local 18 or the IBEW participated in a conspiracy to obstruct justice, 42 U.S.C. § 1985(2), or to deprive Childs of any right or privilege, 42 U.S.C. § 1985(3).

Neither does any evidence indicate that the union appellees cooperated with DWP, a public entity, in depriving Childs of a right or privilege, as would be necessary to support a claim under section 1983. Section 1983 does not provide a cause of action to redress injuries caused by purely private actors such as Local 18 and the IBEW.

Childs alleges that the district court erred in ignoring her claim that section 3502.5 of the California Government Code, which permits public agencies and unions to negotiate agency shop agreements, conflicts with the thirteenth amendment to the United States Constitution. Cal.Gov't Code Sec. 3502.5 (West Supp.1988). While the district court should have addressed the claim, we need not remand, as the claim is patently frivolous. See Wicks v. Southern Pac. Co., 231 F.2d 130, 138 (9th Cir.), cert. denied, 351 U.S. 946 (1956); Skidmore v. Consolidated Rail Corp., 619 F.2d 157, 159 (2d Cir. 1979); cert. denied, 449 U.S. 854 (1980).

AFFIRMED.