Tony Edinbyrd v. Davey et al

Filing 28

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 10/24/17. Referred to Judge O'Neill. Objections to F&R Due Within 14 Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY EDINBYRD,

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Plaintiff,
v.
DAVE DAVEY, et al.,

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Defendants.

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Case No. 1:15-cv-00529-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION, WITH PREJUDICE, FOR FAILURE
TO PROSECUTE AND FAILURE TO OBEY
A COURT ORDER
(ECF No. 27)
FOURTEEN (14) DAY DEADLINE

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Plaintiff Tony Edinbyrd (“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 proceeds on

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Plaintiff’s third amended complaint against Defendants Rocha and Lazano for failure to protect

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Plaintiff from violence at the hand of other prisoners in violation of the Eighth Amendment. For

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the reasons that follow, the Court recommends that this action be dismissed, with prejudice.

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I.

Background

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On August 2, 2017, Defendants filed a motion for summary judgment. Fed. R. Civ. P. 56.

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(ECF No. 25.) Plaintiff was provided with notice of the requirements for opposing a motion for

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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

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No. 25-1.) Plaintiff’s opposition was due within twenty-one (21) days of service of the motion,
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but he filed no response.
On September 11, 2017, the Court ordered Plaintiff to file an opposition or statement of

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non-opposition to the motion for summary judgment within thirty (30) days of service of that

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order. (ECF No. 27.) Plaintiff was warned that “the failure to comply with this order will result

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in dismissal of this action, with prejudice, for failure to prosecute and failure to obey a court

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order.” (Id. at 2.) Plaintiff has failed to submit any opposition and has not otherwise

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

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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

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

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

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

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

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

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

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

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

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

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(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:

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

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

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

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F.2d 1421, 1423 (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

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with Defendants’ motion for summary judgment for two months without any response or

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

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comply with all applicable rules and Defendants’ notice, Plaintiff did not file a timely opposition.

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Plaintiff remained incommunicative after being issued another order by this Court to respond to

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the pending motion. The Court cannot effectively manage its docket if a party ceases litigating

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the case. Thus, both the first and second factors weigh in favor of dismissal of this action.

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

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

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

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

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

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

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

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

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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 132–33; Henderson, 779 F.2d at 1424. The Court’s September 11, 2017 order

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requiring Plaintiff to respond to the motion for summary judgment expressly warned him that the

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

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failure to prosecute and failure to obey a court order. (ECF No. 27, p. 2.) Thus, Plaintiff had

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adequate warning that dismissal this action could result from his noncompliance. At this stage in

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the proceedings there is little available to the Court which would constitute a satisfactory lesser

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sanction while protecting the Court from further unnecessary expenditure of its scarce resources.

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Plaintiff is proceeding in forma pauperis in this action, making monetary sanctions of little use,

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and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has

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ceased litigating this case.

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

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

Conclusion and Recommendation

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

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failure to obey a court order.

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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)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 24, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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