Villa v. Gonzalez et al

Filing 33

FINDINGS and RECOMMENDATIONS Regarding Defendants' 29 Motion to Dismiss, signed by Magistrate Judge Barbara A. McAuliffe on 12/2/2014, referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 ) ) ) ) ) ) ) ) ) ) ) ROBERT VILLA, Plaintiff, v. F. GONZALEZ, et al., 13 Defendants. 14 1:11-cv-01080-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO DISMISS (ECF No. 29) FOURTEEN-DAY DEADLINE 15 Findings and Recommendations 16 17 I. Procedural History 18 Plaintiff Robert Villa (“Plaintiff”), a former state prisoner currently housed in the 19 Riverside County Jail, is proceeding pro se and in forma pauperis in this civil rights action 20 pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 30, 2011. (ECF No. 1.) 21 Following screening, this action currently proceeds on Plaintiff’s first amended complaint 22 against Defendants Garikaparthi, Vu, Joaquin, and Shiesha for deliberate indifference to serious 23 medical needs in violation of the Eighth Amendment. 24 On January 7, 2013, Defendants Garikaparthi, Vu, Joaquin and Shiesha filed an answer to 25 the complaint. (ECF No. 16.) On September 11, 2013, the Court issued a Discovery and 26 Scheduling Order. Pursuant to that order, discovery in this matter closed on May 11, 2014, and 27 the dispositive motion deadline expired on July 21, 2014. (ECF No. 21.) 28 1 1 On July 11, 2014, Defendants filed the instant motion to dismiss this action with 2 prejudice for failure to prosecute, or to vacate and reset the Discovery and Scheduling Order. 3 (ECF No. 29.) On August 8, 2014, the Court issued an order directing Plaintiff to file an 4 opposition or statement of non-opposition within twenty-one (21) days. (ECF No. 30.) On 5 August 29, 2014, Plaintiff filed an opposition to the motion to dismiss. (ECF No. 32.) The 6 motion is deemed submitted. Local Rule 230(l). 7 As discussed below, the Court recommends that Defendants’ motion to dismiss this 8 action be denied and that Defendants’ motion to vacate and reset the Discovery and Scheduling 9 Order be granted. 10 II. 11 Defendants move to dismiss this action with prejudice for failure to prosecute pursuant to Defendants’ Motion to Dismiss for Failure to Prosecute 12 Federal Rule of Civil Procedure 41(b) and Local Rule 183(b). In the alternative, Defendants 13 move to vacate the existing Discovery and Scheduling Order and adopt a new Discovery and 14 Scheduling Order. (ECF No. 29, pp. 1-2.) 15 16 A. Legal Standard – Involuntary Dismissal Federal Rule of Civil Procedure 41(b) provides that a defendant may move to dismiss the 17 action “if the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R. 18 Civ. P. 41(b). District courts have the inherent power to control their dockets and “[i]n the 19 exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.” 20 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, 21 with prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or 22 failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 23 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 24 Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 25 Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to 26 comply with court order). 27 28 2 In determining whether to dismiss an action, the Court must consider several factors: (1) 1 2 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 3 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 5 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 6 B. 7 1. Defendants’ Position Defendants contend that Plaintiff’s failure to apprise Defendants of his mailing address 8 9 Discussion warrants dismissal of this action for failure to prosecute. Defendants report that they served 10 written discovery to Plaintiff on January 30, 2014. (ECF No. 29, Feser Dec. ¶¶ 2-6.) The 11 discovery was served on Plaintiff’s last known address, which was provided on December 11, 12 2013. (ECF No. 25.) Defendants declare that the United States Postal Service returned the 13 envelope containing the discovery to defense counsel with a stamp and sticker stating “Return to 14 Sender.” (ECF No. 29-1, Ex. F to Feser Dec.) Defendants assert that Plaintiff’s failure to 15 provide a proper address for service of documents prevented them from conducting any 16 discovery prior to expiration of the discovery deadline. Defendants argue that Plaintiff failed to comply with the Court’s First Informational 17 18 Order, which states, in relevant part, “A pro se plaintiff has an affirmative duty to keep the court 19 and opposing parties apprised of his or her address. Local Rule 182(f).” (ECF No. 2, ¶ 11.) 20 Defendants further argue that Plaintiff failed to comply with Local Rule 183(b), which provides: 21 Address Changes. A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixtythree (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 22 23 24 25 Local Rule 183(b). 26 /// 27 /// 28 3 2. Plaintiff’s Position 1 2 Plaintiff responds that he was released from custody on July 8, 2014, and before 3 he could notify the Court and Defendants of his new address, he was rearrested and in 4 custody in Riverside County on August 10, 2014. Plaintiff reports that he did not receive 5 any discovery from Defendants prior to his release. 6 Plaintiff has filed a notice of change of address, which indicates he is currently housed at 7 the Riverside County Jail. Plaintiff requests that the Court consider his situation and not dismiss 8 this action. 9 10 3. Analysis According the record before the Court, discovery was served on Plaintiff on January 30, 11 2014, at 30755 B-Auld Road, Murrieta, California 92563. This address corresponds with the 12 Southwest Detention Center in Riverside County. The return mail envelope containing 13 discovery states, “Return to Sender,” and is marked “Not in Custody.” (ECF No. 29-1, Ex. F.) 14 However, Plaintiff’s opposition suggests that he remained at the Southwest Detention Center 15 until July 8, 2014. Following release, and before he could update his address, Plaintiff was 16 rearrested on August 10, 2014, and is currently housed at the Riverside County Jail. 17 There is no indication as to why Plaintiff would not have received discovery while he 18 remained in custody at the Southwest Detention Center, why the returned envelope indicated that 19 Plaintiff was no longer in custody or why Plaintiff could not have updated his address following 20 his release—whenever it may have occurred. Nonetheless, as Plaintiff has provided a current 21 mailing address, the Court finds that the public policy favoring disposition of cases on their 22 merits outweighs the other relevant factors when considering whether to dismiss this action for 23 failure to prosecute. Henderson, 779 F.2d at 1423. Any prejudice to defendants from the 24 inability to conduct discovery and the related delay will be minimized by granting their request 25 to issue a new Discovery and Scheduling Order. Accordingly, it is recommended that an 26 Amended Discovery and Scheduling Order be issued upon adoption of these Findings and 27 Recommendations. 28 4 1 III. 2 For the reasons set forth above, the Court HEREBY RECOMMENDS that Defendants’ 3 motion to dismiss, filed on July 11, 2014, be DENIED IN PART and GRANTED IN PART as 4 follows: 5 1. Defendants’ motion to dismiss this action with prejudice for failure to prosecute be DENIED; and 6 7 2. Defendants’ alternative motion to vacate and reset the Discovery and Scheduling Order be GRANTED; and 8 9 Conclusion and Recommendations 3. An Amended Discovery and Scheduling Order be ISSUED following adoption of the Findings and Recommendations. 10 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 fourteen (14) days after being served with these Findings and Recommendations, the parties 14 may file written objections with the Court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 16 objections within the specified time may result in the waiver of the “right to challenge the 17 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 18 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 19 1394 (9th Cir. 1991)). 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara December 2, 2014 23 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5

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