Carlos Pena v. Huckabay et al

Filing 27

ORDER DISMISSING Action, with Prejudice signed by District Judge Lawrence J. O'Neill on 8/18/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARLOS PENA,

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CASE NO. 1:09-cv-00404-LJO-SKO PC
Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE

v.
(Docs. 23, 25, 26)

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D. HUCKABAY, et al.,
Defendants.
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Plaintiff Carlos Pena, a former state prisoner proceeding pro se, filed this civil action on

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September 5, 2008, in Fresno County Superior Court. Defendants Huckabay, Ericson, Tucker,

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Valencia, and Dever removed the action on February 27, 2009, 28 U.S.C. § 1441(b), and it is

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currently proceeding on Plaintiff’s second amended complaint against Defendants Valencia and

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Dever for use of excessive force, in violation of the Eighth Amendment of the United States

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Constitution, 42 U.S.C. § 1983. All other claims and parties have been dismissed.

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On March 12, 2012, Defendants filed a motion for summary judgment. On March 15, 2012,

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the Court ordered Plaintiff to file an opposition or a statement of non-opposition within thirty days

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and it warned Plaintiff that the failure to comply with the order would result in dismissal, with

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prejudice. Plaintiff filed a motion seeking a thirty-day extension of time, and it was granted on April

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24, 2012, but no response was filed.

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On July 9, 2012, following the decision in Woods v. Carey, 684 F.3d 934, 936 (9th Cir.

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2012), the Court issued a notice warning Plaintiff of the requirements for opposing Defendants’

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motion and it ordered Plaintiff to file a response within twenty-one days. Plaintiff was again warned
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that the failure to comply would result in dismissal of the action. To date, Plaintiff has not complied

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with or otherwise responded to the order.

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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,’” 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 Local Rules and

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he was initially informed via court order of the Local Rule governing the briefing schedule. Despite

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Plaintiff’s duty to comply with all applicable rules, upon the filing of the motion for summary

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judgment, the Court prompted Plaintiff to comply by filing an opposition or a statement of non-

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opposition. Following the issuance of Woods, the Court issued a summary judgment notice and

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again directed Plaintiff to file an opposition or a statement of non-opposition The Court’s efforts

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were met with silence from Plaintiff, and the Court cannot effectively manage its docket if a party

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ceases litigating 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 weighs 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. Plaintiff is proceeding in forma

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pauperis in this action, making monetary sanctions of little use, and given this stage of the

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proceedings, the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff
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has ceased litigating his 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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In summary, Plaintiff filed this action but he is no longer prosecuting it. Almost six months

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have passed since Defendants filed their motion for summary judgment, and Plaintiff has not

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responded, despite the issuance of the Court’s First Informational Order, the Court’s order

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specifically directing him to respond, and the Court’s Woods-mandated notice, which again directed

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Plaintiff to respond. (Docs. 3, ¶9; Doc. 23; Doc. 26.) The Court is buried under a veritable flood

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of civil cases and simply cannot afford to expend resources resolving, on the merits, an unopposed

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motion for summary judgment in a case a plaintiff is no longer prosecuting.

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Accordingly, the Court finds that dismissal is the appropriate sanction. This action is
HEREBY ORDERED dismissed, with prejudice, for failure to prosecute.

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IT IS SO ORDERED.

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Dated:
b9ed48

August 18, 2012

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

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