Ricks v. Kamena et al

Filing 68

ORDER Granting Defendant's 63 Motion to Dismiss signed by District Judge Dale A. Drozd on 05/07/2019. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,

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No. 1:15-cv-00715-DAD-BAM

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
C. KAMENA,

(Doc. No. 63)

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Defendant.

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Plaintiff Scott K. Ricks has been proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. Pending before the court is defendant’s

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motion to dismiss for failure to prosecute. (Doc. No. 63.) The court finds this motion suitable for

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decision without oral argument pursuant to Local Rule 230(g).
On April 18, the assigned magistrate judge issued an order to show cause why this action

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should not be dismissed due to plaintiff’s failure to comply with a court order and failure to

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prosecute this action. (Doc. No. 62.) The magistrate judge noted that plaintiff had failed to

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timely file a pretrial statement in this case and had failed to communicate to the court his reasons

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for delay. (Id. at 1–2.) The magistrate judge ordered plaintiff to respond to that order within

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fourteen days, but to date, no response to the order to show cause has been filed by plaintiff.

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In addition, a telephonic trial confirmation hearing was scheduled before the undersigned

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on May 6, 2019. Although plaintiff was advised via the scheduling order and by subsequent

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minute order of the date and time of this hearing, plaintiff did not appear at the hearing

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telephonically or in person. (Doc. Nos. 55, 65.)

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Before dismissing a case for failure to prosecute, district courts must weigh five factors:

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“(1) the public’s interest in expeditious 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.” In re

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Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The court

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addresses each in turn.
The first factor strongly favors dismissal here. This action has now been pending before

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the court for over four years, and under the operative scheduling order, trial is not slated to

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commence until July of this year. Permitting this case to proceed would greatly prolong that

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timeline, because plaintiff would be required to file a pretrial statement, which he has failed to do

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as required by prior order, after which a second telephonic trial confirmation hearing would be

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held, with the jury trial occurring months thereafter.

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The second factor also favors dismissal in this case. The docket of the Eastern District is

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one of the most heavily burdened in the country, as it has been for many years. The judges in this

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district must devote their scarce resources to parties who actively litigate their claims. Through

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his actions, plaintiff has repeatedly demonstrated that he is unwilling to do so.

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Permitting this case to proceed despite plaintiff’s failure to prosecute would also prejudice

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defendant. Here, defendant is plainly prejudiced by plaintiff’s failure to submit a pretrial

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statement, because defendant cannot determine which exhibits and witnesses plaintiff intends to

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rely on at trial. See In re PPA Prods. Liab. Litig., 460 F.3d 1227 (“Failing to produce documents

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as ordered is considered sufficient prejudice.”). In addition, as in all cases, [u]nnecessary delay

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inherently increases the risk that witnesses’ memories will fade and evidence will become stale.”

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Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). This factor therefore also favors

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dismissal of this action.
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The court acknowledges that, as the Ninth Circuit has instructed, “the public policy

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favoring disposition of cases on their merits strongly counsels against dismissal.” In re PPA

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Prods. Liab. Litig., 460 F.3d at 1228. Ultimately, however, this case cannot proceed to a trial

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unless plaintiff takes the necessary steps. Although the court has been quite accommodating to

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plaintiff in light of his pro se status, a merits determination appears foreclosed by plaintiff’s

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apparent abandonment of this case. See id. (noting that “this factor ‘lends little support’ to a party

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

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impedes progress in that direction”).

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Finally, the fifth factor also favors dismissal here. Despite noting plaintiff’s failure to

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timely file a pretrial statement, the telephonic trial confirmation hearing remained on calendar,

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offering plaintiff an opportunity to telephonically appear and explain to the court why he has not

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complied with the court’s orders. As stated, plaintiff was also given an opportunity to respond to

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the magistrate judge’s order to show cause, but failed to do so. With respect to alternative

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sanctions, plaintiff, who is proceeding in forma pauperis in this matter, likely would not have the

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ability to pay monetary sanctions even if the court were to impose them. Accordingly, the court

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can conceive of no viable alternative but to dismiss this case.

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For these reasons,

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1.

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Defendant’s motion to dismiss due to plaintiff’s failure to prosecute this action
(Doc. No. 63) is granted; and

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The Clerk of Court is directed to close this case.

IT IS SO ORDERED.
Dated:

May 7, 2019
UNITED STATES DISTRICT JUDGE

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