Avery v. Director of CDCR, et al.

Filing 114

FINDINGS and RECOMMENDATIONS Recommending that Defendants' 104 Motion to Dismiss for Failure to Prosecute be Denied signed by Magistrate Judge Gary S. Austin on 01/17/2013. Referred to Judge O'Neill; Objections to F&R due by 2/22/2013. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SHANNON LEWIS AVERY, SR.,

12

Plaintiff,

13
14

1:07-cv-01175-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO
PROSECUTE BE DENIED
(Doc. 104.)

v.
CDCR DIRECTOR, et al.,

15

OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

Defendants.
16
/
17
18

I.

BACKGROUND

19

Shannon Lewis Avery, Sr. (“Plaintiff”) is a former state prisoner proceeding pro se and in

20

forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the

21

Complaint commencing this action on May 16, 2007 in the Northern District of California, and the

22

case was transferred to the Eastern District of California on August 13, 2007. (Docs. 1, 2.) This case

23

now proceeds on Plaintiff’s Second Amended Complaint filed on July 20, 2010, against C/O J.

24

Amaya for retaliation under the First Amendment; against defendant C/O G. Gonzales for

25

inadequate medical care and for failure to protect Plaintiff, in violation of the Eighth Amendment;

26

and on Plaintiff’s related state tort claims. (Doc. 69.)

27

On August 2, 2012, Defendants filed a motion to dismiss this action, with prejudice, for

28

Plaintiff’s failure to prosecute. (Doc. 104.) On October 12, 2012, Plaintiff filed an opposition to
1

1

the motion. (Doc. 111.) On October 29, 2012, Defendants filed a reply to the opposition. (Doc.

2

112.)

3

II.

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

4

A.

5

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for

6

failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply

7

with the court's local rules, or failure to comply with the court's orders.1 See, e.g., Chambers v.

8

NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123 (1991) (recognizing that a court “may act sua sponte

9

to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv.,

10

403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal

11

Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules

12

of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)

13

(“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for

14

failure to comply with any order of the court.”), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121

15

L.Ed.2d 242 (1992); Pagtalunan, 291 F.3d at 642–43 (affirming district court's dismissal of case for

16

failure to prosecute when habeas petitioner failed to file a first amended petition), cert. denied, 538

17

U.S. 909, 123 S.Ct. 1481 (2003). This Court's Local Rules are in accord. See Local Rule 183(a)

18

(providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the

19

court's Local Rules, and other applicable law may support, among other things, dismissal of that

20

party's action).

Legal Standard

21

A court must weigh five factors in determining whether to dismiss a case for failure to

22

prosecute, failure to comply with a court order, or failure to comply with a district court's local rules.

23

Specifically, the court must consider: (1) the public's interest in expeditious resolution of litigation;

24

(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

25

///

26
1

27
28

Id. at 1260–61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642–43 (9th Cir. 2002); Ghazali v. Moran, 46
F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838, 116 S.Ct. 119 (1995). The Ninth Circuit Court of Appeals
has stated that “[t]hese factors are not a series of conditions precedent before the judge can do anything, but a way
for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,
1226 (9th Cir. 2006).

2

1

policy favoring disposition of cases on their merits; and (5) the availability of less drastic

2

alternatives. Pagtalunan, 291 F.3d at 642 (citing Ferdik, 963 F.2d at 1260-61.

3

B.

4

Defendants move to dismiss this case based on Plaintiff's complete lack of participation since

5

Defendants’ appearance in this matter and lack of responsiveness to any of Defendants’ discovery

6

efforts and motions to compel, as shown by the evidence.

Defendants’ Motion

7

On February 6, 2012, Defendants served a request for production of documents upon

8

Plaintiff, and Plaintiff’s responses were due 45 days later, by March 26, 2012. (Declaration of E.

9

Wada, Doc. 104-1 ¶¶3, 4.) Plaintiff has not responded to the request or to Defendants’ efforts to

10

meet and confer with Plaintiff. (Id. ¶4.)

11

On April 30, 2012, Defendants served a set of requests for admission and interrogatories

12

upon Plaintiff, and Plaintiff’s responses were due on June 14, 2012. (Id. ¶¶5-7.) Plaintiff has not

13

served any responses or objections, negotiated an extension of time, or responded to Defendants’

14

efforts to meet and confer with Plaintiff. (Id. ¶7.)

15

On May 3, 2012, Defendants served upon Plaintiff a notice of Plaintiff’s deposition

16

scheduled for June 5, 2012. (Id. ¶8.) Plaintiff failed to appear, and he never contacted Defendants’

17

counsel to reschedule the deposition or responded to Defendants’ meet and confer communications.

18

(Id. ¶¶9-11.)

19
20

Defendants also filed two subsequent motions to compel further discovery, which Plaintiff
failed to oppose. (Id. ¶¶12, 13.)

21

Defendants argue that this case should be dismissed because four of the five factors

22

enumerated in Ferdik, 963 F.2d at 1260-61, weigh in favor of dismissal, and only one factor – the

23

public policy favoring disposition of cases on their merits – weighs against dismissal. Defendants

24

argue that Plaintiff has abandoned the case, and the first factor, the public's interest in the expeditious

25

resolution of litigation, always favors dismissal. With respect to the second factor, Defendants argue

26

that the Court has already spent more than enough judicial resources on this case, screening the

27

complaint three times, and considering and denying nine frivolous motions by a plaintiff who refuses

28

to participate in discovery. As to the third factor, Defendants argue that the risk of prejudice to them
3

1

is significant, because as more time passes, potential witnesses may recall less about the events at

2

issue, and due to Plaintiff's failure to participate in discovery, Defendants have been totally deprived

3

of the opportunity to meaningfully litigate this case further. Under the fourth factor, Defendants

4

argue that there are no less drastic alternatives to involuntary dismissal which will not further burden

5

the resources of the Court or Defendants. Finally, Defendants argue that only the fifth factor weighs

6

against a dismissal, because it favors the public policy of disposing of cases on their merits; however,

7

Defendants contend that this factor alone should not preclude the Court from granting their motion.

8

C.

Plaintiff’s Opposition

9

In opposition, Plaintiff asserts that he is a disabled prisoner with congestive heart failure and

10

spinal disease, sometimes unable to walk or hardly move, and is scheduled for surgery on October

11

24, 2012. Plaintiff requests to be informed “what documents need to be turned into the courts [to

12

proceed with claims for] defendants violation of Plaintiff’s U.S. Constitution Rights.” (Opp’n, Doc.

13

111 at 3.)

14

D.

15

The Court agrees that Plaintiff has not adequately participated in proceedings in this action.

16

Defendants have submitted evidence that Plaintiff has not responded to their discovery requests, their

17

meet and confer efforts, their attempts to notice Plaintiff’s deposition, or their motions to compel

18

further discovery. (Declaration of Emily Y. Wada, Doc. 104-1 ¶¶3-13.) Also, Plaintiff responded

19

untimely to Defendants’ motion to dismiss, only after the Court ordered him to respond, and his

20

response did not address Defendants’ arguments. (Doc. 111.)

Discussion

21

As discussed above, the Court must weigh five factors in determining whether to dismiss a

22

case for failure to prosecute: (1) the public's interest in expeditious resolution of litigation; (2) the

23

court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

24

favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.

25

Pagtalunan, 291 F.3d at 642 (citing Ferdik, 963 F.2d at1260-61).

26

“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.

27

(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action

28

has been pending for more than five years. However, Plaintiff has indicated an interest in resuming
4

1

his participation in this case, and while not ideal, it is not unusual for litigation of the Court's

2

prisoner cases to continue for more than five years. Plaintiff's failure to respond to Defendants’

3

discovery requests and motions may have resulted from incapacities due to his serious medical

4

conditions, surgery, and difficulty in moving around. While the Court cannot continue to expend

5

its scarce resources assisting a litigant who will not help himself by participating in discovery and

6

properly defending his lawsuit against dismissal, the Court is cognizant that “[i]n civil rights cases

7

where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford

8

plaintiff the benefit of any doubt.” Karim–Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623

9

(9th Cir.1988) Thus, both the first and second factors weigh against immediate dismissal.

10

Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and

11

of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the

12

risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's

13

failure to respond to Defendants' motions and discovery requests that is causing delay. Therefore,

14

the third factor weighs in favor of dismissal.

15

Defendants have requested dismissal with prejudice, which is the harshest possible sanction.

16

As for the availability of lesser sanctions, the Court recognizes that there is little available which

17

would constitute a satisfactory lesser sanction while also preventing further unnecessary expenditure

18

of the Court's scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

19

monetary sanctions of little use, and given the early stage of these proceedings, the preclusion of

20

evidence or witnesses is not available. However, in light of Plaintiff's pro se status and his reports

21

of serious medical problems, the Court shall not recommend dismissal at this juncture, but shall

22

recommend that Plaintiff be required to resume his participation by responding to Defendants'

23

motions to compel within thirty days.
Finally, because public policy favors disposition on the merits, this factor will always weigh

24
25

against dismissal. Id. at 643.

26

III.

CONCLUSION AND RECOMMENDATION

27

Defendants have demonstrated that Plaintiff has failed to adequately participate in the

28

prosecution of this action during past months. However, in weighing the five Ferdik factors
5

1

discussed above, the Court finds that the case should not be dismissed at this juncture, and Plaintiff

2

should be granted an opportunity to resume his participation in this action. Therefore, the Court

3

HEREBY RECOMMENDS that:

4

1.

Defendants' motion to dismiss this action, filed on August 2, 2012, be DENIED; and

5

2.

Plaintiff be required to resume his participation in this action by filing responses to
Defendants' pending motions to compel within thirty days.

6
7

These Findings and Recommendations will be submitted to the United States District Court

8

Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within thirty (30)

9

days after being served with a copy of these Findings and Recommendations, any party may file

10

written objections with the Court and serve a copy on all parties. Such a document should be

11

captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

12

objections shall be served and filed within ten (10) days after service of the objections. The parties

13

are advised that failure to file objections within the specified time may waive the right to appeal the

14

order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

15
16
17

IT IS SO ORDERED.
Dated:
6i0kij

January 17, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
6