Baker v. Moreno, et al.
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Case for Failure to Prosecute and Obey the Court's Orders signed by Magistrate Judge Sheila K. Oberto on 02/16/2018. Referred to Judge Ishii; Objections to F&R due by 3/12/2018.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TOMMY LEE BAKER, III,
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Plaintiff,
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v.
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MORENO, et al.,
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Case No. 1:16-cv-01758-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS CASE FOR FAILURE TO
PROSECUTE AND OBEY THE COURT’S
ORDERS
(Docs. 29, 32)
Defendants.
TWENTY-ONE (21) DAY DEADLINE
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Plaintiff, Tommy Lee Baker, III, 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. On November 27, 2017,
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Defendants filed a motion for summary judgment contending that Plaintiff failed to comply with
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the Prison Litigation reform Act (“PLRA”). 42 U.S.C. § 1997e(a), by exhausting available
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administrative remedies prior to filing suit. (Doc. 27.) Defendants provided Plaintiff notice and
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warning of the requirements for preparing his opposition in compliance with Woods v. Carey, 684
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F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998);
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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 27-1.)
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The Court issued the Amended Second Informational Order that same date reminding
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Plaintiff of those requirements. The Court noted that Plaintiff’s opposition or statement of non-
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opposition must be filed not more than twenty-one days after service of Defendants’ motion.
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(Doc. 29.) That order further warned Plaintiff that if he did not file “an opposition or a
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statement of non-opposition to the motion, this action may be dismissed, with prejudice, for
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failure to prosecute as well as his failure to obey the Court’s order and the Local Rules.”
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(Id., 1:25-2:1 (emphasis in original).) More than twenty-one (21) days have passed from the
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service of Defendants’ motion without Plaintiff having filed an opposition or a statement of non-
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opposition.
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Accordingly, on January 11, 2018, an order issued for Plaintiff to show cause within
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twenty-one days (21) why this action should not be dismissed based on his failure to comply with
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the Court’s November 28, 2017 order and for failure to prosecute this action. (Doc. 32.)
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Alternatively, Plaintiff was allowed to file an opposition or statement of non-opposition. (Id.)
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Plaintiff has neither complied with, nor responded to the November 28, 2017 Amended Second
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Informational Order or to the January 11, 2018 order to show cause.
Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules
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or with any order of the Court may be grounds for the imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “in the exercise of that power, they may impose sanctions including,
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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute
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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
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(dismissal for failure to comply with local rules); Malone v. U.S. Postal Service, 833 F.2d 128,
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130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779
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F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with
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local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
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order, or failure to comply with local rules, 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;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;
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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,
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46 F.3d at 53.
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The Court finds that the public’s interest in expeditiously resolving this litigation and the
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Court’s interest in managing its ever burgeoning docket weigh in favor of dismissal. The third
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factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of
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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air
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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition
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of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed
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herein. Finally, a Court’s warning to a party that his failure to obey the court’s order will result in
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dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at
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1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. As noted above, the Court’s order
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requiring Plaintiff to file an opposition or statement of non-opposition to Defendants’ motion for
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summary judgment expressly warned that the action may be dismissed with prejudice for failure
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to prosecute if Plaintiff failed to file an opposition or statement of non-opposition. (Doc. 29,
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1:25-2:1.) The order to show cause issued on January 11, 2018, also required Plaintiff to explain
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why dismissal should not be recommended based on his failure to prosecute this action, and
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provided Plaintiff another opportunity to respond to Defendants’ motion. (Doc. 32.) Thus,
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Plaintiff had more than adequate opportunity to oppose Defendants’ motion and sufficient
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warning that dismissal may result from his noncompliance with the Court’s orders.
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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with
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prejudice based on Plaintiff’s failure to obey the Court’s orders of November 28, 2017, (Doc. 29),
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and January 11, 2018, (Doc. 32).
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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)(l). Within
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twenty-one (21) days after being served with these Findings and Recommendations, the parties
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may file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
February 16, 2018
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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