Brammer v. Yates et al

Filing 68

ORDER DISMISSING ACTION, with Prejudice, for Failure to Prosecute signed by Magistrate Judge Gerald B. Cohn on 08/13/2012. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES W. BRAMMER,

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Plaintiff,

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CASE NO. 1:07-cv-01350-GBC (PC)
ORDER DISMISSING ACTION, WITH
PREJUDICE, FAILURE TO PROSECUTE

v.
JAMES A. YATES, et al.,

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Defendants.

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/

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I.

Procedural History

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At the time of filing, James W. Brammer (“Plaintiff”) was a state prisoner proceeding pro
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se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action
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is proceeding on Plaintiff’s second amended complaint filed on September 19, 2011, against
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Defendants Yates, Chapnick, Kushner, and Salazar (“Defendants”) for deliberate indifference of a
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serious medical need relating to the treatment of Plaintiff’s hand injury, in violation of the Eighth
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Amendment. Doc. 51 (Complaint); Doc. 54 (Cog. Claim Ord.).
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On February 17, 2012, Defendants filed a motion to dismiss. Doc. 58. On July 18, 2012, the
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Court issued an order explaining that Plaintiff was required to file an opposition or a statement of
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non-opposition to Defendants’ motion to dismiss. Doc. 67. The Court warned Plaintiff that if he
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failed to submit an opposition or a statement of non-opposition within twenty-one days from the date
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of service of the order, that this action would be dismissed with prejudice. Doc. 67. Over twenty28
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one days has passed and Plaintiff has still not complied with the Court’s order.

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II.

Failure to Comply with Court Order

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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local

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Rules or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “in the exercise of that power, they may impose sanctions including, where

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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure

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to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss this action for failure to comply with the directives set

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forth in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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‘The public’s interest in expeditious resolution of litigation always favors dismissal.’

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (quoting Yourish v. California Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999)). Plaintiff is obligated to comply with the Local Rules and was informed via

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court order regarding the requirement to file an opposition of statement of non-opposition. Doc. 67.

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The Court cannot effectively manage its docket if a party ceases to obey the orders of the court and
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litigate the case. Thus, both the first and second factors weigh in favor of dismissal.

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

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

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

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failure to comply with the Local Rules and the Court’s order that is causing delay. Therefore, the

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third factor weight in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scare resources and the statutory requirement that

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Plaintiff pays the filing fee to proceed with the complaint. Finally, because public policy favors

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disposition on the merits, this factor usually weighs against dismissal. Id. at 643. However, “this

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factor lends little support to a party whose responsibility it is to move a case toward disposition on

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the merits but whose conduct impedes progress in that direction,” In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations

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omitted), as is the case here.

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In summary, Plaintiff has failed to comply with the Court order to file an opposition of

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statement of non-opposition. Twenty-one days has passed since the Court ordered Plaintiff to

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respond and Plaintiff has not responded, despite being notified of the requirement via the Court’s

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order specifically directing him to respond. Doc. 67.

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III.

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Conclusion and Order
Accordingly, the Court finds that dismissal is the appropriate sanction and ORDERS that this

action be DISMISSED, WITH PREJUDICE, for failure to prosecute.

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IT IS SO ORDERED.

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Dated:
0jh02o

August 13, 2012
UNITED STATES MAGISTRATE JUDGE

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