Christensen v. Verducci

Filing 35

ORDER DISMISSING WITH PREJUDICE, for failure to prosecute, signed by Judge Oliver W. Wanger on 8/5/2011. CASE CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JEREMY ROBERT CHRISTENSEN,

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CASE NO. 1:09-cv-01440-OWW-GBC (PC)

Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FAILURE TO PROSECUTE

v.
(Doc. 34)

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MICHAEL VERDUCCI,
Defendant.
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Plaintiff Jeremy Robert Christensen (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s complaint, filed August 17, 2009, against Defendant Michael Verducci for violation of

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the Eighth Amendment. On January 31, 2011, Defendant filed a motion for summary judgment.

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(Doc. 29). Plaintiff failed to file an opposition or a statement of non-opposition to the motion, in

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compliance with Local Rule 230(m), and on July 11, 2011, the Court ordered Plaintiff to do so

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within twenty days. The time allowed for Plaintiff to file an opposition has passed and Plaintiff has

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not filed any response to Defendants’ motion for summary judgment and Plaintiff has yet to submit

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a timely response to the Court’s 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

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

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

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th
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Cir. 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 since November 2007. Plaintiff is obligated to comply with the Local Rules and

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was informed via court order regarding the need to oppose a motion to dismiss. Despite Plaintiff’s

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duty to comply with all applicable rules and despite the previous issuance of the motion to dismiss

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

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opposition. The Court’s effort was met with silence from Plaintiff, and the Court cannot effectively

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

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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. 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,” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d

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1217, 1228 (9th Cir. 2006) (internal quotations and citations omitted), as is the case here.

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In summary, Plaintiff filed this action but is no longer prosecuting it. More than 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 being notified of the requirement to respond via the Court’s Second Informational

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Order, and the Court’s order specifically directing him to respond. (Docs. 10 at ¶ 3; Doc. 34). This

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Court cannot afford to expend resources resolving an unopposed motion for summary judgment in

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a case the Plaintiff is no longer prosecuting. Accordingly, the Court finds that dismissal is the

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appropriate sanction and ORDERS that this action be DISMISSED, WITH PREJUDICE, for failure

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to prosecute.

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IT IS SO ORDERED.
Dated:
August 5, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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