Garcia, Jr. v. Tulare County Main Jail et al

Filing 50

ORDER Dismissing Action, with Prejudice, for Failure to Prosecute and Failure to Obey Court Orders signed by Magistrate Judge Barbara A. McAuliffe on 06/06/2018. CASE CLOSED.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

OMAR GARCIA, JR.,

12
13
14
15

Plaintiff,
v.

Case No. 1:14-cv-00476-BAM (PC)
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO
PROSECUTE AND FAILURE TO OBEY
COURT ORDERS

TULARE COUNTY MAIN JAIL, et al.,
(ECF No. 45, 48)
Defendants.

16
17

Plaintiff Omar Garcia, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis, initiated

18

this civil rights action pursuant to 42 U.S.C. § 1983 while he was detained at the Bob Wiley

19

Detention Facility in Visalia, California. Plaintiff is now a state prisoner housed at California

20

State Prison, Los Angeles County. This action proceeds on Plaintiff’s first amended complaint

21

against: (1) Defendants O’Rafferty and Kaiois (sued as Kaious) for excessive force in violation of

22

the Fourteenth Amendment, (2) Defendant Onstott for failure to intervene in violation of the

23

Fourteenth Amendment; (3) Defendants O’Rafferty, Kaiois, Flores, Avina, Myers (sued as

24

Meyers) and Ellis for deliberate indifference to serious medical needs in violation of the

25

Fourteenth Amendment; and (4) Defendants O’Rafferty, Kaiois, Flores, Avina, Myers and Ellis

26

for negligence in violation of state law. All parties have consented to the jurisdiction of a United

27

States Magistrate Judge. (ECF Nos. 5, 19.) For the reasons that follow, the Court orders that this

28

action be dismissed, with prejudice.
1

1

I.

2

On August 16, 2017, Defendants filed a motion for summary judgment. Fed. R. Civ. P.

Background

3

56. (ECF No. 36.) Plaintiff was provided with notice of the requirements for opposing a motion

4

for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154

5

F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988).

6

(ECF No. 36, pp. 1–3.) Plaintiff filed an opposition on September 11, 2017, (ECF No. 37), and

7

Defendants filed a reply on September 20, 2017, (ECF No. 38).

8
9

As Plaintiff’s opposition failed to comply with Federal Rule of Civil Procedure
56(c)(1)(A) and Local Rule 260(b), and with the consent of Defendants, the Court granted

10

Plaintiff an opportunity to submit additional evidence in support of his opposition. (ECF No. 45.)

11

Plaintiff was directed to submit a supplement to his opposition showing good cause as to why

12

Defendants’ motion for summary judgment should not be granted, within twenty-one (21) days

13

from service of the Court’s order. Plaintiff was warned that failure to respond may result in

14

dismissal of this action or in summary judgment in favor of Defendants. (Id.)

15

On April 20, 2018, Plaintiff filed a motion for a sixty-day extension of time to file a

16

response to the Court’s order. (ECF No. 47.) Plaintiff states that twenty-one days was not

17

sufficient time for him to respond, and that he had not had sufficient access to the law library to

18

research case law. (Id.) The Court found good cause to grant Plaintiff’s motion in part, and

19

ordered Plaintiff to file his response within thirty (30) days. (ECF No. 48.)

20

As of the date of this order, Plaintiff has not filed a supplemental response to Defendants’

21

motion for summary judgment, a response to the Court’s order to show cause, or otherwise

22

communicated with the Court.

23

II.

Discussion

24

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

25

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

26

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

27

dockets and “[i]n the exercise of that power they may impose sanctions including, where

28

appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
2

1

court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

2

failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

3

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

4

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

5

amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

6

(dismissal for failure to comply with court order).

7

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

8

(1) the public’s interest in expeditions resolution of litigation; (2) the Court’s need to manage its

9

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

10

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

11

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

12

Here, the action has been pending for more than four years, and Plaintiff’s supplemental

13

response or opposition to Defendants’ motion for summary judgment is overdue. Plaintiff is

14

obligated to comply with the Local Rules and was informed by Defendants of the need to oppose

15

a motion for summary judgment. Despite Plaintiff’s duty to comply with all applicable rules and

16

Defendants’ notice, Plaintiff did not file a proper opposition. Plaintiff was provided with an

17

opportunity to show cause why this action should not be dismissed, and after being granted an

18

extension of time to respond, remained incommunicative. The Court cannot effectively manage

19

its docket if a party ceases litigating the case. Thus, both the first and second factors weigh in

20

favor of dismissal of this action.

21

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

22

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

23

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

24

disposition on the merits, the fourth factor usually weighs against dismissal. Pagtalunan v.

25

Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party

26

whose responsibility is to move a case toward disposition on the merits but whose conduct

27

impedes progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA)

28

Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006).
3

Finally, the Court’s warning to a party that failure to obey the Court’s order will result in

1
2

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

3

Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s March 30, 2018 order to

4

show cause expressly warned Plaintiff that the failure to respond to that order would result in

5

dismissal of this action or in summary judgment in favor of Defendants. (ECF No. 45, p. 4.)

6

Thus, Plaintiff had adequate warning that dismissal of this action could result from his

7

noncompliance. At this stage in the proceedings there is little available to the Court which would

8

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

9

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

10

making monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to

11

have no effect given that Plaintiff has ceased litigating this case.

12

In summary, Plaintiff is no longer prosecuting this action, and the Court cannot afford to

13

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

14

prosecuting.

15

III.

Conclusion and Order

16

Accordingly, the Court finds that dismissal is the appropriate sanction and this action is

17

HEREBY DISMISSED, with prejudice, for failure to prosecute and for failure to obey a court

18

order.

19
20
21

IT IS SO ORDERED.
Dated:

/s/ Barbara

June 6, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
4