Thomas v. Razo, et al.

Filing 62

FINDINGS and RECOMMENDATIONS Recommending that this 1 Action be Dismissed based on Plaintiff's Failure to Prosecute, Failure to Follow the Court's Orders, and Failure to Respond to the Order to Show Cause; Objections Due within Twenty-One Days signed by Magistrate Judge Dennis L. Beck on 1/13/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/7/2014. (Sant Agata, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

ROBERT THOMAS,

12
13
14
15

Plaintiff,
vs.
J RAZO, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:10cv02173 AWI DLB PC
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE
TWENTY-ONE DAY DEADLINE

16
17
18
19
20

Plaintiff Robert Thomas (“Plaintiff”) is a California state prisoner proceeding pro se and
in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on
an Eighth Amendment excessive force claim against Defendants Razo, Moreno, Brown, Vera,
Vasquez and Holguin. Trial is currently set for February 25, 2014.

21

On January 13, 2014, the Court vacated the Telephonic Trial Confirmation Hearing based
22
23
24
25
26

on Plaintiff’s failure to file a pretrial statement, as well as his failure to respond to the December
30, 2013, Order to Show Cause.
DISCUSSION
The failure to obey a scheduling order is grounds for the imposition of sanctions. Fed. R.

27

Civ. P. 16(f)(1)(C). The Second Scheduling Order, issued on April 8, 2013, contained notice to

28

Plaintiff that the failure to file a pretrial statement in compliance with the order may result in the
1

1

imposition of sanctions, including dismissal. Further, in the December 30, 2013, Order to Show

2

Cause, the Court warned Plaintiff that the failure to respond to the order would result in

3
4
5
6

dismissal.
A scheduling order is not a frivolous piece of paper, idly entered. Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quotation marks and citation omitted).
Parties are required to exercise due diligence, Zivkovic v. Southern California Edison Co., 302

7

F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609), and the Court finds that
8
9
10
11
12

Plaintiff’s failure to file a pretrial statement and failure to respond to the order to show cause
warrant the imposition of sanctions.
The Court has the inherent power to control its docket and may, in the exercise of that
power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los

13

Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action

14

for failure to comply with a pretrial order, the Court must weigh: (1) the public’s interest in

15

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

16

prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

17

and (5) the availability of less drastic sanctions. In re Phenylpropanolamine (PPA) Products

18

Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quotation marks and citation omitted).

19

These factors guide a court in deciding what to do and are not conditions that must be met in

20

order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).

21
22
23

This case has been pending since 2010, and it is set for jury trial in approximately six
weeks. The expeditious resolution of litigation and the Court’s need to manage its docket weigh
in favor of dismissal. Id. at 1227. This action has been pending for more than three years, and

24

Plaintiff had ample time to begin trial preparation and comply with the scheduling order. Id.
25

The Court has an extremely heavy caseload, and when litigants disregard orders of the court and
26
27
28

deadlines, the Court’s ability to manage its docket and guide cases toward resolution is
significantly compromised. Id.
2

1
2
3
4
5
6

As for the risk of prejudice, while the mere pendency of an action does not constitute
prejudice, the impairment of Defendants’ ability to proceed to trial is prejudicial. Id. at 1227-28
(quotation marks omitted).
Regarding the fourth factor, while public policy favors disposition on the merits and
therefore weighs against dismissal, it is Plaintiff’s own conduct which is at issue here and which
has stalled the case. Id. at 1228.

7

Finally, there are no alternative sanctions which are satisfactory. A monetary sanction
8
9
10
11
12

has little to no benefit in a case in which Plaintiff has ceased responding to the Court’s orders. In
addition, Plaintiff is a state prisoner and is proceeding in forma pauperis in this action.
Discovery is closed and the deadline for filing pretrial motions has passed, rendering
unavailable the Court’s ability to impose any limitations on Plaintiff in those areas as a sanction.

13

Lastly, the preclusion of evidence or witnesses is not an available sanction given that Plaintiff

14

failed to identify any exhibits or provide a witness list via a pretrial statement. See Local Rule

15

281(b)(10),(11).

16

In conclusion, the Court recommends that this action be dismissed given the procedural

17

posture of this case, Plaintiff’s failure to comply with the pretrial scheduling order, and the

18

unavailability of satisfactory alternative sanctions. In re PPA, 460 F.3d at 1228-29.

19
20
21
22

FINDINGS AND RECOMMENDATIONS
Based on the foregoing, it is HEREBY RECOMMENDED that this action BE
DIMISSED based on Plaintiff’s failure to prosecute, failure to follow the Court’s orders and
failure to respond to the Order to Show Cause.

23

These Findings and Recommendations will be submitted to the United States District
24
25
26
27
28

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twentyone (21) days after being served with these Findings and Recommendations, the parties may file
written objections with the Court. The document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” A party may respond to another party’s objections by
3

1
2
3
4

filing a response within fourteen (14) days after being served with a copy of that party’s
objections. The parties are advised that failure to file objections within the specified time may
waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th
Cir. 1991).

5
6
7

IT IS SO ORDERED.

8

Dated:

9
10
11

/s/ Dennis

January 13, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

9b0hied

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4