McCormick v. Atkins et al

Filing 31

FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER 30 signed by Magistrate Judge Stanley A. Boone on 3/2/2015. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/6/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRANDON EARL McCORMICK,

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Plaintiff,

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v.
DR. ATKIN, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO COMPLY WITH A COURT
ORDER
[ECF No. 30]

action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendants Doctor Alfonso, Bitanga, Pascua, Belallo, and

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Case No.: 1:12-cv-02022-LJO-SAB (PC)

Plaintiff Brandon Earl McCormick is appearing pro se and in forma pauperis in this civil rights

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Dean for deliberate indifference to a serious medical need.

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On September 8, 2014, Defendants filed a motion for summary judgment relating to

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exhaustion of the administrative remedies. Plaintiff did not respond to the motion and on October 24,

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2014, the Court directed Plaintiff to show cause why the action should not be dismissed for failure to

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prosecute the action. Local Rule 230(l). On November 12, 2014, the Court discharged the order to

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show cause and granted Plaintiff thirty days to file an opposition to Defendants’ motion. (ECF No.

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30.) More than thirty days have passed, and Plaintiff has not complied with or otherwise responded to

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the order.

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I.

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DISCUSSION

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The Court has the inherent power to control its docket and may, in the exercise of that power,

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

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County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to

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comply with a pretrial order, the Court must weigh “(1) the public’s interest in expeditious resolution

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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

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Cir. 2006) (internal quotations and citations omitted).

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“The public’s interest in expeditious resolution of litigation always favors dismissal,”

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citation and internal quotation marks

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omitted), and Court’s need to manage its docket weighs in favor of dismissal, as “[i]t is incumbent

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upon the Court to manage its docket without being subject to routine noncompliance of litigants,” Id.

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However, the Court is constrained to find that the prejudice factor weighs against dismissal because

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the mere pendency of an action does not constitute prejudice; and public policy favors disposition on

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the merits, which weighs against dismissal. In re PPA, 460 F.3d at 1228; Pagtalunan, 291 F.3d at 642-

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43.

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Nevertheless, there are no alternative sanctions which are satisfactory. In re PPA, 460 F.3d at

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1228-29; Pagtalunan, 291 F.3d at 643. A monetary sanction has little to no benefit in a case in which

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the plaintiff is proceeding in forma pauperis, and based on Plaintiff’s failure to comply with or

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otherwise respond to the Court’s order, the Court is left with no alternative but to dismiss the action

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for failure to prosecute. Id. This action, which has been pending since 2012, requires Plaintiff’s

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cooperation in its prosecution, the action cannot simply remain idle on the Court’s docket, and the

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Court is not in a position to expend its scant resources resolving an unopposed motion in light of

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Plaintiff’s demonstrated disinterest in continuing the litigation. Id. In addition, Plaintiff has been

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forewarned that dismissal of the action would result for failure to comply with the court’s order. (ECF

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No. 30.)
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II.

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RECOMMENDATION
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to

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prosecute. In re PPA, 460 F.3d at 1226; Local Rule 110.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with this Findings and Recommendation, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(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:

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March 2, 2015
UNITED STATES MAGISTRATE JUDGE

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