Smith v. Green et al

Filing 27

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, with Prejudice, for Failure to Prosecute and Failure to Obey a Court Order, signed by Magistrate Judge Barbara A. McAuliffe on 4/6/16. Referred to Judge Drozd; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLIFFORD SMITH,

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Plaintiff,

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v.
GREEN, et al.,

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Defendants.
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Case No.: 1:13-cv-00880-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
PROSECUTE AND FAILURE TO OBEY A
COURT ORDER
(ECF No. 26)
THIRTY (30) DAY DEADLINE

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FINDINGS AND RECOMMENDATIONS

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Plaintiff Clifford Smith (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983, filed his complaint in this action on June 12,

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2013. This action currently proceeds on Plaintiff’s first amended complaint against Defendants Green,

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Wilson and Rohrdanz for deliberate indifference to serious medical needs in violation of the Eighth

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Amendment.

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I.

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Background
On December 28, 2015, Defendants filed a combined motion for summary judgment. Fed. R.

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Civ. P. 56. (ECF No. 24.) Plaintiff was provided with notice of the requirements for opposing a motion

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for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir.2012); Rand v. Rowland, 154 F.3d
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952, 957 (9th Cir.1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir.1988). (ECF No. 24-

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7.) Plaintiff’s opposition was due within twenty-one (21) days of service of Defendants’ motion, but

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he filed no response.

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On February 26, 2016, the Court ordered Plaintiff to file an opposition to Defendant’s motion

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within thirty (30) days of service of that order. (ECF No. 26). Plaintiff was warned that “the failure to

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comply with this order will result in dismissal of this action, with prejudice, for failure to prosecute

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and failure to obey a court order.” (Id. at 2.) Plaintiff has failed to submit any opposition and has not

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otherwise communicated with the Court. As of the date of this order, Plaintiff’s response to

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Defendants’ motion for summary judgment is more than two months overdue.

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II.

Discussion
Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the

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inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n

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the 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, with

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

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

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service,

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833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order).

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

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public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3)

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the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423

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(9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).

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Here, the action has been pending for more than two years, and Plaintiff has been served with

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Defendants’ motion for summary judgment for more than three months without any response or

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opposition. Plaintiff is obligated to comply with the Local Rules and was informed by Defendants of
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the need to oppose a motion for summary judgment. Despite Plaintiff’s duty to comply with all

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applicable rules and Defendants’ notice, Plaintiff did not file a timely opposition. Plaintiff remained

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incommunicative after being issued another order by this Court to respond to the pending motion. The

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Court cannot effectively manage its docket if a party ceases litigating the case. Thus, both the first and

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second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Because public policy favors disposition on

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the merits, the fourth factor usually weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643

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(9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to move

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a case toward disposition on the merits but whose conduct impedes progress in that direction,” which

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is the case here. In re PPA, 460 F.3d at 1228.
Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s February 26, 2016 order requiring

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Plaintiff to respond to Defendant’s motion for summary judgment expressly warned him that he failure

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to comply with that order would result in dismissal of this action, with prejudice, for failure to

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prosecute and failure to obey a court order. (ECF No. 26, p. 2.) Thus, Plaintiff had adequate warning

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that dismissal could result from his noncompliance. Also, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the Court

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from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis

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in this action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.
In summary, Plaintiff filed this action but is no longer prosecuting it. The Court cannot afford

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to expend resources resolving unopposed dispositive motions in a case which Plaintiff is no longer

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prosecuting.

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III.

Conclusion and Recommendation

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Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, with prejudice, for failure to prosecute and for failure

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to obey a court order.

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These Findings and Recommendations 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 these Findings and Recommendations, 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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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

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1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 6, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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