Siordia v. Cate, et al.

Filing 34

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED With Prejudice Based on Plaintiff's Failure to Obey the Court's Orders and Failure to Prosecute re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 8/29/2013. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SIORDIA,

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CASE No. 1:11-cv-00742-LJO-MJS (PC)

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
DISMISSING ACTION WITH PREJUDICE
FOR FAILURE TO OBEY COURT
ORDERS AND FAILURE TO
PROSECUTE

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v.
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MATTHEW CATE, et al.,

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(ECF Nos. 31, 33)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Defendants.
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Plaintiff Robert Siordia is a state prisoner proceeding pro se and in forma
pauperis in a civil rights action filed May 9, 2011 pursuant to 42 U.S.C. § 1983. (ECF
No. 1.) This matter proceeds on the complaint’s Eighth Amendment claim against
Defendants Cate and Yates. (ECF No. 11.)

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Defendants filed a motion for summary judgment on March 11, 2013. 1 (ECF No.
27.) On April 24, 2013, Plaintiff was granted an extension of time to May 15, 2013 to file
opposition or a statement of non-opposition. (ECF No. 31.) The May 15, 2013 deadline
passed without Plaintiff responding or seeking an extension of time to do so. On July

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Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Rand v. Rowland, 154 F.3d 952 (9th Cir.
1998), Defendants notified Plaintiff of his rights, obligations and methods for opposing Defendants’
motion.

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29, 2013, Plaintiff was ordered to file opposition by not later than August 23, 2013. (ECF
No. 33.) The August 23, 2013 deadline has passed without Plaintiff responding or
seeking an extension of time to do so. Plaintiff has not obeyed the April 24, 2013 and
July 29, 2013 orders.
Local Rule 110 provides that “failure of counsel or of a party to comply with these
Rules or with any order of the Court may be grounds for imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.” District courts have the

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inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure
to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 126061 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of
a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
failure to comply with local rule requiring pro se plaintiffs to keep court apprised of
address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424
(9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to
obey a court order, or failure to comply with local rules, the Court must consider several
factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s
need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5) the availability of less drastic
alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone,
833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
In the instant case, the public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third
factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a
presumption of injury arises from the occurrence of unreasonable delay in prosecuting
this action which arose over two years ago. Anderson v. Air West, 542 F.2d 522, 524
(9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their
merits -- is greatly outweighed by the factors in favor of dismissal discussed herein.
Finally, as for the availability of lesser sanctions, at this stage in the proceedings there
is little available which would constitute a satisfactory lesser sanction while preserving
scarce Court resources. Plaintiff has not paid the filing fee for this action and is likely
unable to pay, making monetary sanctions of little use. Plaintiff has failed to oppose
Defendants’ motion for summary judgment notwithstanding repeated extensions of time
to do so. It is reasonable to conclude Plaintiff is unable to make an evidentiary showing
in opposition. See Fed. R. Civ. P. 56(e)(4); Local Rule 230(l). Plaintiff was warned that a
failure to file an opposition or statement of non-opposition by the August 23, 2013
deadline may result in the action being dismissed with prejudice. (ECF No. 33 at 2:712.)

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Having balanced these factors, the undersigned finds they weigh in favor of
dismissal and accordingly HEREBY RECOMMENDS that this action be DISMISSED
WITH PREJUDICE based on Plaintiff's failure to obey the Court’s orders and failure to
prosecute.

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These findings and recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
636(b)(l). Within fourteen (14) 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 filing a
response within fourteen (14) days after being served with a copy of that party’s

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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
(9th Cir. 1991).

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Dated:

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August 29, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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DEAC _Signature- END:

12eob4

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