Cohea v. Adams et al

Filing 86

ORDER DISMISSING ACTION, With Prejudice, For Failure to Prosecute, signed by District Judge Lawrence J. O'Neill on 12/21/2011. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,

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CASE NO. 1:08-cv-01186-LJO-BAM PC

Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO PROSECUTE

v.
D. ADAMS, et al.,
Defendants.
/

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Plaintiff Danny James Cohea, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action pursuant to 42 U.S.C. § 1983 on August 13, 2008. On August 30, 2011,
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Defendants filed a motion for summary judgment. (ECF No. 75.) On September 2, 2011, an order
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issued denying Plaintiff’s motion to compel and directing him to file an opposition to the motion for
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summary judgment within thirty days. (ECF No. 76.) Plaintiff was granted a sixty day extension
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of time on October 4, 2011. (ECF No. 81.) More than sixty days have passed and Plaintiff has not
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filed a response to the motion for summary judgment.
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Plaintiff was warned that the failure to file a response to Defendants’ motion would result
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in dismissal of the action, with prejudice, for failure to prosecute. The Court has the inherent power
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to control its docket and may, in the exercise of that power, impose sanctions where appropriate,
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including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.
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2000). In determining whether to dismiss an action for failure to comply with a pretrial order, the
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Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s
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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)

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(internal quotations and citations omitted). These factors guide a court in deciding what to do, and

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are not conditions that must be met in order for a court to take action. Id. (citation omitted).

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

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

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has been pending more than three years. Plaintiff is obligated to comply with the Federal Rules of

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Civil Procedure, the Local Rules, and court orders. Plaintiff failed to comply with the order

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requiring him to respond to Defendants’ motion for summary judgment. The Court cannot

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effectively manage its docket if a party ceases litigating the case. Thus, both the first and second

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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 the Court’s order that is causing delay. Therefore, the third factor weighs in favor

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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 and the State of California from further unnecessary expenditures of their scare resources.

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Plaintiff is proceeding pro se and is a prisoner, making monetary sanctions likely of little use, and

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given this stage of the proceedings, the preclusion of evidence or witnesses is likely to have no effect

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on a plaintiff who has ceased litigating the case.

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Finally, because public policy favors disposition on the merits, this factor usually weighs

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against dismissal. Id. at 643. However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” as is the case here. In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations omitted).
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Based on Plaintiff’s failure to comply to with or otherwise respond to the Court’s order, the

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Court is left with no alternative but to dismiss the action for failure to prosecute. In re PPA, 460

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F.3d at 1228. This action, which has been pending since 2008, can proceed no further without

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Plaintiff’s cooperation and compliance with court orders, and the action cannot simply remain idle

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on the Court’s docket, unprosecuted. Id.

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Accordingly, it is HEREBY ORDERED that:

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This action is dismissed, with prejudice, for Plaintiff’s failure to prosecute; and

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All pending motions are terminated.

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IT IS SO ORDERED.

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Dated:
b9ed48

December 21, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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