Watts v. Nguyen, et al.

Filing 62

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED With Prejudice Based on Plaintiff's Failure to Obey Court Orders re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Sheila K. Oberto on 5/31/2017. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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Plaintiff,

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v.

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NGUYEN, et al.,

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Case No. 1:13-cv-00917-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS CASE FOR FAILURE TO
PROSECUTE AND OBEY A COURT
ORDER
(Docs. 50, 51, 54, 59)

Defendants.

TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, Timothy Watts, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. This action was dismissed and judgment

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entered in Defendants’ favor on September 9, 2015, when Defendants’ motion for summary

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judgment based on Plaintiff’s failure to exhaust available administrative remedies prior to filing

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suit was granted. (Docs. 44, 45.) Plaintiff filed a timely appeal to the Ninth Circuit. (Doc. 46.)

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In light of the subsequent intervening authority in Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016),

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the Ninth Circuit remanded this action for determination whether Plaintiff properly exhausted

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administrative remedies on his deliberate indifference claim regarding medical appliances. (Doc.

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49, pp. 2-3.) Reyes issued subsequent to the closure of this action and was neither addressed by

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the parties in the dispositive motion, nor considered in the ruling thereon.

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Accordingly, on December 2, 2016, an order issued granting Defendants opportunity to

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file a motion for summary judgment on exhaustion, restricted to Plaintiff’s deliberate indifference

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claim regarding medical appliances, or a statement that, in light of Reyes, they did not intend to
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file a motion on exhaustion issues. (Doc. 50.) If Defendants chose to file a new motion for

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summary judgment, Plaintiff was directed to file an opposition within twenty-one (21) days of the

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date that Defendants serve their motion. (Id.) That same date, an order issued provided notice

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and warning of the requirements for his opposition in compliance with Woods v. Carey, 684 F.3d

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934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998); Klingele v.

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Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 51.)

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Defendants filed their motion for summary judgment on exhaustion issues on December

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22, 2016. (Doc. 54.) More than twenty-one (21) days have lapsed without Plaintiff having filed

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an opposition or a statement of non-opposition to their motion. Thus, on April 6, 2017, an order

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issued for Plaintiff to show cause within twenty-one days (21) why this action should not be

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dismissed based on his failure to comply with the Court’s December 2, 2016 orders and for

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failure to prosecute this action. (Doc. 59.) More than a month has lapsed and Plaintiff has not

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complied with the December 2, 2016 orders, or with the April 6, 2017 order to show cause.1
Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised

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of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for

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failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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It is noted that, on April 26, 2017, Plaintiff filed a motion to appoint counsel. (Doc. 60.) However, more than
twenty-one days have now lapsed from the order denying this request which issued on May 5, 2017. (Doc. 61.)

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(dismissal for failure to lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a court

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order, or failure to comply with local rules, 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;

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

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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46 F.3d at 53.

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Here, the Court finds that the public’s interest in expeditiously resolving this litigation and

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the Court's interest in managing the docket weigh in favor of dismissal. The third factor, risk of

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prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on

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their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,

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a Court’s warning to a party that his failure to obey the court’s order will result in dismissal

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satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file

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an opposition or statement of non-opposition to Defendants’ motion for summary judgment

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expressly stated: “If Plaintiff fails to file an opposition or a statement of non-opposition to the

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motion, this action may be dismissed, with prejudice, for failure to prosecute.” (Doc. 51, p. 1

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(emphasis in original).) The orders to show cause which issued on February 1, 2017, and April 6,

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2017, also cautioned that this action may be dismissed for his failure to comply with the Court’s

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orders to file an opposition or a statement of non-opposition and for his failure to prosecute this

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action. (Docs. 55, 59.) Thus, Plaintiff had more than adequate warning that dismissal may result

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from his noncompliance with the Court’s orders.

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with

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prejudice based on Plaintiff’s failure to obey the Court’s orders of December 2, 2016, (Docs. 50,

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51) and April 6, 2017 (Doc. 59).
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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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twenty-one (21) 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.” Failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 31, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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