Damon Newquist v. Soa et al

Filing 42

FINDINGS and RECOMMENDATIONS to Grant Defendants' 40 Motion to Dismiss signed by Magistrate Judge Sheila K. Oberto on 02/04/2020. Fourteen-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMON NEWQUIST,

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Plaintiff,

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v.
SOA; CHEN,

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Case No. 1:17-cv-01150-NONE-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS’ MOTION TO
DISMISS
(Doc. 40)

Defendants.

14-DAY DEADLINE

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Defendants move to dismiss this action for Plaintiff’s failure to prosecute and obey the

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Court’s December 3, 2019 order (Doc. 39). (Doc. 40 at 4.). In its order, the Court directed

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Plaintiff, within 21 days, to (1) respond to Defendants’ interrogatories, requests for production,

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and requests for admission, (2) appear for his deposition at a time and place agreed upon with

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Defendants’ counsel, and (3) show cause why this action should not be dismissed for failure to

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prosecute or, alternatively, update his address with the Court. (Doc. 39 at 5.)
Although more than two months have passed, Plaintiff has failed to respond to

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Defendants’ discovery requests (Doc. 40 at 5), communicate with counsel regarding his

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deposition (id.), update his address with the Court, or otherwise respond to the Court’s order.

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According to Defendants’ counsel, Plaintiff has not responded to any communications from

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Defendants since he was paroled from Kern Valley State Prison on May 17, 2019. (Id. at 3, 5.)

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///

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The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide that

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“[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for

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the imposition by the Court of any and all sanctions … within the inherent power of the Court.”

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Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising

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that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth.,

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City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a

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party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g.

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a

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court order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128,

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130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan,

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779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local

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rules).

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In addition, Federal Rule of Civil Procedure 37 provides, “[i]f a party … fails to obey an

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order to provide or permit discovery, … the court where the action is pending may” impose

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sanctions, including dismissal of the action in its entirety. Fed. R. Civ. P. 37(b)(2)(A)(v).

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It appears that Plaintiff has abandoned this action. Whether Plaintiff has done so

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mistakenly or intentionally after his release from prison is inconsequential. It is Plaintiff’s

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responsibility to comply with the Local Rules, Federal Rules, and Court orders. The Court

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declines to expend its limited resources on a case that Plaintiff has chosen to ignore.

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For the reasons set forth above, the Court RECOMMENDS that:

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1. Defendants’ motion to dismiss (Doc. 40) be GRANTED; and,

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2. This action be DISMISSED with prejudice for Plaintiff’s failure to prosecute this

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action and obey the Court’s order.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of

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the date of service of these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff’s failure to file objections within the specified time may result
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in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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

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IT IS SO ORDERED.
Dated:

February 4, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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