Garcia v. California Department of Corrections and Rehabilitation et al

Filing 31

ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, with Prejudice, for Failure to Prosecute and to Obey a Court Order signed by Magistrate Judge Barbara A. McAuliffe on 08/08/2016. Referred to Judge Ishii; Objections to F&R due by 8/26/2016.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESUS A. GARCIA,

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Plaintiff,

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v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Case No.: 1:14-cv-00459-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
PROSECUTE AND TO OBEY A COURT ORDER
(ECF No. 30)

FOURTEEN (14) DAY DEADLINE

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FINDINGS AND RECOMMENDATIONS

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Plaintiff Jesus A. Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on

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Plaintiff’s claims for deliberate indifference to his health and safety in violation of the Eighth

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Amendment against Defendants J. Mejia and J. Faure.

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I.

Background
On May 4, 2016, Defendants filed a motion to dismiss Plaintiff’s complaint under Federal Rule

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of Civil Procedure 12(b)(6) for failure to state a claim.1 (ECF No. 15.) Plaintiff’s opposition was due

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on or before May 31, 2016. Plaintiff filed no opposition, and thus on June 8, 2016, Plaintiff was

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ordered to file an opposition or a statement of non-opposition to Defendants’ motion within twenty-

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one (21) days. (ECF No. 22.) Plaintiff was expressly warned that the failure to comply with that order

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would result in dismissal of his action, with prejudice, for failure to prosecute and failure to obey a

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court order. (Id. at 2.) Plaintiff failed to comply with that order.
Accordingly, on July 13, 2016, the Court issued an order to show cause why this action should

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not be dismissed for the failure to prosecute and the failure to obey a court order. (ECF No. 30.)

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Plaintiff was again warned that the failure to show good cause would result in the case being

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dismissed with prejudice. (Id. at 2.) Plaintiff’s response to that order was due on or before August 1,

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2016. However, as of the date of this order, Plaintiff has neither complied with the Court’s previous

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orders, nor otherwise communicated with the Court. At this time, Plaintiff’s response to Defendants’

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motion to dismiss is now more than two (2) 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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The motion was filed by Defendant Faure, and later joined by Defendant Mejia. (ECF No. 27.)

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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 over two (2) years. The current motion to dismiss the

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action has been pending since May 2016, and despite multiple attempts to communicate with Plaintiff,

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he has been non-responsive to the Court’s orders. The Court cannot effectively manage its docket if a

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party ceases litigating the case. Thus, both the first and 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.

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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 June 8, 2016 order expressly

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warned Plaintiff that his failure to comply with that order would result in dismissal of this action, with

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prejudice, for failure to prosecute and failure to obey a court order. (ECF No. 28, p. 2.) The warning

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was reiterated in the Court’s July 13, 2016 order to show cause. (ECF No. 30.) Thus, Plaintiff had

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adequate warning that dismissal could result from his noncompliance.

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Also, at this stage in the proceedings there is little available to the Court which would

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constitute a satisfactory lesser sanction while protecting the Court from further unnecessary

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expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no effect

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given that Plaintiff has ceased litigating his case.
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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.

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Conclusion and Recommendation
Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a

district judge to this action.
Further, 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 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 fourteen (14)

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days after being served with these Findings and Recommendation, the parties may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” The parties are advised that failure to file objections within the

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

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

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 8, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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