Selsor v. Weaver et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendant Castaneda and all Claims against him, with Prejudice, for Failure to Prosecute and Failure to Obey a Court Order; Fourteen (14) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 5/2/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 5/22/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JEFFREY SELSOR,
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Plaintiff,
v.
CASTANEDA, et al.,
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Case No. 1:15-cv-00918-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
DEFENDANT CASTANEDA AND ALL
CLAIMS AGAINST HIM, WITH PREJUDICE,
FOR FAILURE TO PROSECUTE AND
FAILURE TO OBEY A COURT ORDER
Defendants.
(ECF No. 25)
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FOURTEEN (14) DAY DEADLINE
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Plaintiff Jeffrey Selsor (“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 against
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Defendants Docanto and Jordan for allegedly attacking Plaintiff on September 20, 2014, and
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against Defendant Castaneda for the failure to protect Plaintiff from the attack in violation of the
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Eighth Amendment. For the reasons that follow, the Court recommends that Defendant
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Castaneda and the claim against him be dismissed from this action.
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I.
Background
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On January 31, 2017, Defendant Castaneda filed a motion for summary judgment. Fed. R.
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Civ. P. 56. (ECF No. 24.) Plaintiff was provided with notice of the requirements for opposing a
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motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland,
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154 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988).
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(ECF No. 24-5.) Plaintiff’s opposition was due within twenty-one (21) days of service of
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Defendant Castaneda’s motion, but he filed no response.
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On March 13, 2017, the Court ordered Plaintiff to file an opposition or statement of non-
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opposition to Defendant Castaneda’s motion within thirty (30) days of service of that order.
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(ECF No. 25.) Plaintiff was warned that “the failure to comply with this order will result in
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dismissal of this action, with prejudice, for failure to prosecute and failure to obey a court order.”
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(Id. at 2.) Plaintiff has failed to submit any opposition and has not otherwise communicated with
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the Court. As of the date of this order, Plaintiff’s response to Defendant Castaneda’s motion for
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summary judgment is more than two months overdue.
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II.
Discussion
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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 two years, and Plaintiff has been served with
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Defendant Castaneda’s motion for summary judgment for three months without any response or
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opposition. Plaintiff is obligated to comply with the Local Rules and was informed by Defendant
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Castaneda 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 Defendant Castaneda’s notice, Plaintiff did not file a timely
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opposition. Plaintiff remained incommunicative after being issued another order by this Court to
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respond to the pending motion. The Court cannot effectively manage its docket if a party ceases
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litigating the case. Thus, both the first and second factors weigh in favor of dismissal of the claim
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against Defendant Castaneda.
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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 March 13, 2017 order
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requiring Plaintiff to respond to Defendant Castaneda’s motion for summary judgment expressly
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warned him that the 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. 25, p. 2.) Thus,
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Plaintiff had adequate warning that dismissal of his claim against Defendant Castaneda could
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result from his noncompliance. At this stage in the proceedings there is little available to the
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Court which would constitute a satisfactory lesser sanction while protecting the Court from
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further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis
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in this action, making monetary sanctions of little use, and the preclusion of evidence or witnesses
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is likely to have no effect given that Plaintiff has ceased litigating this case against Defendant
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Castaneda. Furthermore, Plaintiff will continue to have the opportunity to litigate his claims
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against the remaining Defendants Docanto and Jordan.
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In summary, Plaintiff is no longer prosecuting his claim against Defendant Castaneda, and
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the Court cannot afford to expend resources resolving unopposed dispositive motions for a claim
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which Plaintiff is no longer prosecuting.
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III.
Conclusion and Recommendation
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Accordingly, the Court finds that dismissal of Plaintiff’s claim against Defendant
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Castaneda is the appropriate sanction and HEREBY RECOMMENDS that Defendant Castaneda
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and the claim(s) against him 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 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
May 2, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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