Gregory Rodriguez v. Hopkins

Filing 33

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED With Prejudice for Failure to Prosecute re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 1/29/2013. Referred to Judge Ishii. Objections to F&R due within fifteen (15) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY RODRIGUEZ,

CASE NO. 1:09-cv-02184-AWI-SKO PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
PROSECUTE

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v.
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HOPKINS,
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(Doc. 30)
Defendant.

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FIFTEEN-DAY OBJECTION PERIOD
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Plaintiff Gregory Rodriguez, proceeding pro se and in forma pauperis, filed this civil rights

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action pursuant to 42 U.S.C. § 1983 on December 16, 2009. This action is proceeding against

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Defendant Hopkins for use of excessive physical force, in violation of the Eighth Amendment.

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On November 19, 2012, Defendant filed a motion to compel responses to his interrogatories

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and requests for the production of documents. Plaintiff failed to file an opposition or a statement

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of non-opposition, and on December 14, 2012, the Court issued an order requiring Plaintiff to file

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a response within twenty-one days. Local Rule 230(l). Plaintiff was warned that the failure to

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comply with the order would result in dismissal of the action, with prejudice, for failure to obey a

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court order and failure to prosecute. More than twenty-one days have passed and Plaintiff has not

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complied with or otherwise responded to the order.

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The Court has the inherent power to control its docket and may, in the exercise of that power,

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

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County, 216 F.3d 837, 841 (9th Cir. 2000).

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failure to comply with the directives set forth in its order, “the Court must weigh the following

In determining whether to dismiss this action for

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage

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its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic

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alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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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 Federal Rules of

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Civil Procedure, the Local Rules, and court orders. Plaintiff was required to serve responses to

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Defendant’s discovery requests within forty-five days from February 2, 2012, and he failed to do so

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despite receiving two meet and confer letters from Defendant’s counsel.1 Plaintiff then failed to file

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a response to Defendant’s motion to compel and he failed to respond to the Court’s subsequent order

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requiring him to do so. The Court cannot effectively manage its docket if a party ceases litigating

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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 discovery 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 and Defendant from further unnecessary expenditures of scare resources. Plaintiff is

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

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

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a plaintiff who has ceased litigating the case.

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Court Doc. 29, Motion to Compel, Coleman Dec., ¶¶3-4.

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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 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 2009, 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. Accordingly, the Court HEREBY RECOMMENDS

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dismissal of this action, with prejudice.

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

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

January 29, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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