Alfaro v. McGuinness et al

Filing 35

FINDINGS and RECOMMENDATIONS Regarding Defendants' 31 MOTION to DISMISS and 32 AMENDED MOTION to DISMISS, signed by Magistrate Judge Barbara A. McAuliffe on 6/3/15. Referred to Judge O'Neill; 14-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE ALFARO,

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Plaintiff,
v.
WILLIAM J. MCGUINNESS, et al.,

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Defendants.

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1:12-cv-00568-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS AND AMENDED MOTION TO
DISMISS (ECF Nos. 31, 32)
FOURTEEN-DAY DEADLINE

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Findings and Recommendations

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I.

Procedural History

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Plaintiff Jesse Alfaro (“Plaintiff”), a former state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 12, 2012. (ECF No.

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1.) This action proceeds against Defendants McGuinness, Moon Neubarth, John Doe and Jane

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Doe for deliberate indifference to serious medical needs in violation of the Eighth Amendment.

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On February 18, 2014, Defendants McGuinness, Moon and Neubarth filed an answer to

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the complaint. (ECF No. 18.) On February 19, 2014, the Court issued a Discovery and

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Scheduling Order. Pursuant to that order, the deadline to complete discovery expired on October

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19, 2014, and the dispositive motion deadline expired on December 29, 2014. (ECF No. 20.)

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On June 16, 2014, Defendants filed a motion to compel Plaintiff to submit responses to
their discovery requests. Defendants asserted that Plaintiff had failed not only to respond to

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interrogatories and requests for production of documents, but also failed to respond to

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Defendants’ meet-and-confer letter. (ECF No. 25.) Plaintiff did not oppose the motion to

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compel and, on August 20, 2014, the Court granted the motion and directed Plaintiff to submit

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discovery responses. (ECF No. 26.) In a related order, the Court assessed Plaintiff the

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reasonable expenses incurred by Defendants in making the motion to compel. Given Plaintiff’s

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in forma pauperis status, however, the Court stayed the order pending a motion demonstrating

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that Plaintiff had the ability to pay the expenses. (ECF No. 28.)

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On November 19, 2014, Defendants requested that the Court re-open discovery for the

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limited purpose of taking Plaintiff’s deposition. Defendants also requested a corresponding

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extension of the dispositive motion deadline. Defendants’ request was based on Plaintiff’s

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failure to respond to written discovery despite the Court’s order and Plaintiff’s failure to allow

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for the completion of his deposition. (ECF No. 29.) On December 10, 2014, the Court granted

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Defendants’ request and re-opened discovery for sixty days for the sole purpose of completing

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Plaintiff’s deposition. The Court also extended the dispositive motion one-hundred twenty days.

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(ECF No. 30.)

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On March 12, 2015, Defendants McGuinness, Moon, and Neubarth filed a motion to

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dismiss Plaintiff’s complaint for failure to prosecute and failure to comply with the Court’s

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order. (ECF No. 31.) On April 8, 2015, Defendants filed an amended motion to dismiss to

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correct the concluding paragraph in their original motion to dismiss. (ECF No. 32.) On May 5,

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2015, the Court ordered Defendants to file the exhibits supporting their motion to dismiss. The

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Court also directed Defendants to submit a declaration identifying when the supporting exhibits

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were served on Plaintiff. (ECF No. 33.)

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On May 7, 2015, defense counsel filed a declaration, along with the supporting exhibits.

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According to the declaration, exhibits supporting the motion to dismiss were served on Plaintiff

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on May 7, 2015. (ECF No. 34.)

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Plaintiff has not timely responded to the motions to dismiss or the exhibits. The motions
are deemed submitted. Local Rule 230(l).

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Defendants’ Motion to Dismiss for Failure to Prosecute

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II.

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Defendants move to dismiss this action with prejudice for failure to prosecute and failure

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to obey a court order pursuant to Federal Rule of Civil Procedure 41(b).
A. Legal Standard – Involuntary Dismissal
Federal Rule of Civil Procedure 41(b) provides that a defendant may move to dismiss an

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action “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R.

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Civ. P. 41(b). District courts have the inherent power to control their dockets and “[i]n the

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exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.”

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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action,

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with prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to

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comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors: (1)

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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 the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988); see also In

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re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

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2006) (standards governing dismissal for failure to comply with court orders). These factors

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

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

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B. Discussion
Defendants contend that this action should be dismissed because Plaintiff has failed to
respond to Defendants’ discovery requests and has refused to be deposed. Defendants report that

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despite the Court’s order compelling Plaintiff’s discovery responses, he has not responded to the

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special interrogatories and requests for production of documents. (ECF No. 31, Lewis Dec. ¶ 4.)

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Defendants also report that after the Court re-opened discovery for the limited purpose of

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deposing Plaintiff, they noticed Plaintiff’s deposition for January 19, 2015, but Plaintiff failed to

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appear. (ECF No. 31, Lewis Dec. ¶ 5 and Ex. 2.) Defendants assert that Plaintiff’s failure to

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cooperate with the discovery process warrants dismissal of this action.

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The Court finds that the public’s interest in expeditious resolution of litigation and the

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Court’s need to manage its docket weigh in favor of dismissal. This action has been pending

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since April 2012 and can proceed no further without Plaintiff’s cooperation in discovery and

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compliance with the Court’s order. Moreover, the matter cannot simply remain idle on the

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Court’s docket, unprosecuted, awaiting Plaintiff’s compliance.
As for the risk of prejudice, while the mere pendency of an action does not constitute

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prejudice, the impairment of Defendants’ ability to proceed to trial is prejudicial. Id. at 1227-28

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(quotation marks omitted). Indeed, the failure to produce documents as ordered is considered

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sufficient prejudice. Id. at 1227.
Regarding the fourth factor, while public policy favors disposition on the merits and

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therefore weighs against dismissal, it is Plaintiff’s own conduct which is at issue here and which

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has stalled the case. Id. at 1228.
Finally, there are no alternative sanctions which are satisfactory. A monetary sanction

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has little to no benefit in a case in which Plaintiff is proceeding in forma pauperis and has ceased

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responding to the Court’s orders. Additionally, the preclusion of evidence or witnesses is not an

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available sanction given that Plaintiff has failed to participate in discovery and is not actively

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participating in this action.

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III.

Conclusion and Recommendations

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For the reasons set forth above, the Court HEREBY RECOMMENDS that Defendants’

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motions to dismiss be GRANTED.

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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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fourteen (14) days after being served with these Findings and Recommendations, the parties

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may 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

June 3, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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