Clark v. California Department Of Corrections And Rehabilitations Substance Abuse Treatment Facility et al
Filing
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FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE AND DENIAL OF PENDING MOTIONS WITHOUT PREJUDICE re 17 , 28 , 30 signed by Magistrate Judge Barbara A. McAuliffe on 3/24/2015. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/27/2015.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEPHEN CLARK,
Plaintiff,
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vs.
DR. KOKOR, et al.,
Defendants.
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Case No. 1:12-cv-00461-LJO-BAM PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE AND
DENIAL OF PENDING MOTIONS
WITHOUT PREJUDICE
(ECF Nos. 17, 28, 30)
THIRTY-DAY DEADLINE
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Plaintiff Stephen Clark (“Plaintiff”), a former state prisoner proceeding pro se and in
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forma pauperis, filed this civil rights action on March 27, 2012. This action proceeds on
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Plaintiff’s complaint against Defendants Ugwueze and Kokor for deliberate indifference to
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serious medical needs in violation of the Eighth Amendment to the United States Constitution.
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On April 25, 2014, Defendants Ugwueze and Kokor filed a motion to dismiss for failure
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to state a claim and for qualified immunity. (ECF No. 17.) Plaintiff failed to respond to the
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motion. Accordingly, on November 7, 2014, the Court ordered Plaintiff to file a response to
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Defendants’ motion to dismiss within twenty-one days. Plaintiff was warned that failure to
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comply with the Court’s order would result in dismissal of this action, with prejudice, for failure
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to prosecute. (ECF No. 25.)
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On December 1, 2014, the Court granted Plaintiff a thirty-day extension of time to file his
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response to Defendants’ motion to dismiss. (ECF No. 27.) Plaintiff failed to file a timely
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opposition. Therefore, on January 13, 2015, the Court ordered Plaintiff to show cause, within
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twenty-one (21) days, why this action should not be dismissed, with prejudice, for failure to
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prosecute. (ECF No. 28.)
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On February 3, 2015, Plaintiff filed a response to the order to show cause, along with a
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notice of change of address. In his response, Plaintiff indicated that he was forced to relocate his
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family for safety reasons and requested an extension of time to file his opposition. (ECF No.
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29.)
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On February 4, 2015, the Court granted Plaintiff a thirty-day (30) extension of time to file
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his opposition to the motion to dismiss, which was served on Plaintiff at the new address for
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service he provided on February 3, 2015. The Court also discharged the order to show cause, but
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cautioned Plaintiff that if he failed to comply with the order, the action may be dismissed for
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failure to prosecute or failure to obey a court order. (ECF No. 30.) On February 26, 2015, the
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Court’s order was returned by the United States Postal Service as undeliverable, unable to
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forward.
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Despite multiple opportunities, Plaintiff has failed to file any opposition to the motion to
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dismiss, which has been pending for nearly one year. Plaintiff has been warned on several
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occasions that failure to respond to the motion to dismiss would result in dismissal of this action
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for failure to prosecute.
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In determining whether to dismiss an action for lack of prosecution, the district court is
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required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the
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public policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quotation marks and citation
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omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re
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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006);
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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d
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1258, 1260-61 (9th Cir. 1992)). These factors guide a court in deciding what to do, and are not
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conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226
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(citation omitted).
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“The public’s interest in expeditious resolution of litigation always favors dismissal.”
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Pagtalunan, 291 F.3d at 642 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th
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Cir. 1999)). This action has been pending for almost three years. Defendants attempted to move
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this case towards disposition by filing a motion to dismiss in April 2014. Despite Plaintiff’s duty
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to comply with all applicable Local Rules, Plaintiff did not file a timely opposition to
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Defendants’ motion to dismiss. After the motion had been pending for more than seven months
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without any opposition, the Court permitted Plaintiff an opportunity to prosecute his case by
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ordering his opposition. Instead of filing an opposition, Plaintiff requested additional time to
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oppose the motion. The Court granted the motion, but Plaintiff again failed to file a timely
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opposition. As a further effort to secure Plaintiff’s compliance and allow him the opportunity to
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prosecute his case, the Court issued an order to show cause approximately nine months after
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Defendants moved to dismiss this action. Again, Plaintiff did not file an opposition. Instead, on
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February 3, 2015, Plaintiff requested a further extension of time to file his opposition. The Court
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granted the requested extension of time and discharged the order to show cause. Although
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served on Plaintiff’s last known address, the Court’s order was returned as undeliverable, unable
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to forward. Since February 3, 2015, Plaintiff has made no effort to contact the Court, and the
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motion to dismiss has now been pending for approximately eleven months. The Court
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recognizes that Plaintiff did not receive the Court’s recent order granting him an extension of
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time to file his opposition, but Plaintiff’s failure to provide a valid address demonstrates his
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unwillingness to prosecute this action in a timely manner. Indeed, the Court’s efforts to obtain a
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response from Plaintiff have been repeatedly met with silence on the merits of his claims. The
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Court cannot effectively manage its docket if a party ceases litigating the case and moving it
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towards resolution. Thus, both the first and second factors weigh in favor of dismissal.
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With regard to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial
in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay
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inherently increases the risk that witnesses’ memories will fade and evidence will become stale.”
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Id. In this instance, it is Plaintiff’s failure to prosecute this case and to comply with the Local
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Rules and court orders that is causing delay. Therefore, the third factor weighs in favor of
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dismissal.
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Because public policy favors disposition on the merits, this factor usually weighs against
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dismissal. Id. at 643. However, “this factor lends little support to a party whose responsibility it
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is to move a case toward disposition on the merits but whose conduct impedes progress in that
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direction,” which is the case here. In re PPA, 460 F.3d at 1228 (internal quotation omitted).
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Finally, as for the availability of lesser sanctions, at this stage in the proceedings there is
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little available to the Court which would constitute a satisfactory lesser sanction while protecting
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the Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in
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forma pauperis in this action, making monetary sanctions of little use, and given this stage of the
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proceedings, the preclusion of evidence or witnesses is likely to have no effect given that
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Plaintiff has ceased litigating his case. Further, the Court repeatedly warned Plaintiff that his
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failure to file an opposition would result in “dismissal of this action, with prejudice, for failure to
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prosecute.” (ECF Nos. 25, 28.)
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In summary, Plaintiff filed this action but is no longer prosecuting it. Nearly one year has
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passed since Defendants filed their motion to dismiss, and Plaintiff has not responded, despite
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being notified of the requirement to respond and the Court’s orders specifically directing him to
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respond. (ECF Nos. 25, 28.) The Court cannot afford to expend resources resolving unopposed
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dispositive motions in a case a plaintiff is no longer prosecuting. Accordingly, the Court finds
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that dismissal, without prejudice as Plaintiff failed to receive the Court’s February 4, 2015 order,
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is the appropriate sanction. The Court also finds that all pending motions should be denied
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without prejudice.
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Accordingly, it is HEREBY RECOMMENDED that:
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1. This action be dismissed, without prejudice, for failure to prosecute; and
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2. All pending motions be denied without prejudice.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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thirty (30) days after being served with these Findings and Recommendations, the parties may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
/s/ Barbara
March 24, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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