Chavarria v. Green et al
Filing
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FINDINGS and RECOMMENDATIONS to 1 Dismiss Case, with Prejudice, for Failure to Obey Court Order and Failure to Prosecute signed by Magistrate Judge Erica P. Grosjean on 01/21/2015. Referred to Judge Drozd; Objections to F&R due by 2/16/2016.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY CHAVARRIA,
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Plaintiff,
vs.
P. A. GREEN, et al.,
Defendants.
1:10-cv-02324-DAD-EPG-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE, WITH PREJUDICE,
FOR FAILURE TO OBEY COURT ORDER
AND FAILURE TO PROSECUTE
(ECF No. 43.)
OBJECTIONS, IF ANY, DUE IN TWENTY
(20) DAYS
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On October 28, 2015, the Court issued an order requiring Plaintiff to file an opposition
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or statement of non-opposition to Defendants’ motion for summary judgment, within thirty
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days. (ECF No. 43.) Plaintiff requested and was granted a thirty-day extension of time until
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December 28, 2015, to comply with the Court’s order. (ECF Nos. 45, 46.) The thirty-day
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extension of time has now expired, and Plaintiff has not filed an opposition or statement of
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non-opposition, or otherwise responded to the Court's order.
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In determining whether to dismiss this action for failure to comply with the directives
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set forth in its order, or for failure to prosecute, Athe Court must weigh the following factors:
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(1) the public=s interest in expeditious resolution of litigation; (2) the court=s need to manage its
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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
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v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-
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61 (9th Cir. 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
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A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@
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id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the
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action has been pending for more than five years, since December 14, 2010. The Court has
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already granted one extension of time and Plaintiff still has not complied with the new
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deadline. This delay is harming the Court’s ability to manage its docket. Thus, both the first
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and second factors weigh in favor of dismissal.
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Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in
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and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently
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increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it
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is Plaintiff's failure to file a response to Defendants’ motion for summary judgment that is
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causing delay. The Court also notes that Plaintiff's failure to file an opposition concerns a
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motion for summary judgment. In that motion, defendants claim that two of three of Plaintiff's
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medical claims should be dismissed for failure to exhaust administrative procedures. While the
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Court has not fully reviewed that motion, Plaintiff's failure to oppose that motion may reflect
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on the lack of viability of at least those two claims. 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 that would constitute a satisfactory lesser sanction while protecting the
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Court from further unnecessary expenditure of its scarce resources. The Court has already
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granted one extension of time. Plaintiff is proceeding in forma pauperis in this action, making
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monetary sanctions of little use, and given the stage of these proceedings, the preclusion of
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evidence or witnesses is not available. The dismissal being considered in this case is with
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prejudice, which is the harshest possible sanction. However, the Court finds this sanction
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appropriate in light of the fact that more than five months have passed since Defendants filed
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their motion for summary judgment, and Plaintiff has yet to file an opposition.1 Moreover,
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Plaintiff was forewarned in the Court's order of October 28, 2015, that his failure to comply
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with the order to respond to the motion for summary judgment would result in dismissal of this
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action, with prejudice.
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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.
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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based
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on Plaintiff's failure to obey the Court=s order of October 28, 2015, failure to oppose
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defendants’ motion for summary judgment, and failure to prosecute this case. These findings
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and recommendations are submitted to the United States District Judge assigned to the case,
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pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty (20) days after being
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served with these findings and recommendations, any party may file written objections with the
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Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and
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Recommendations." Any reply to the objections shall be served and filed within ten (10) days
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after service of the objections. The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d
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834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
January 21, 2016
/s/
UNITED STATES MAGISTRATE JUDGE
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Defendants filed their motion for summary judgment on July 24, 2015. (ECF No. 41.)
Plaintiff was required to file an opposition or a statement of non-opposition to the motion within twenty-one days
of the date the motion was served, but did not do so. Local Rule 230(l).
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