Villegas v. C.C.H.C.S. et al

Filing 33

FINDINGS and RECOMMENDATIONS to Dismiss Case for Plaintiff's Failures to Prosecute and to Comply with Court Orders, signed by Magistrate Judge Jeremy D. Peterson on 5/13/19. Referred to Judge Ishii. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS VILLEGAS, 12 Plaintiff, 13 14 v. D. ROBERTS, et al., 15 Defendants. Case No. 1:17-cv-01326-AWI-JDP FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURES TO PROSECUTE AND TO COMPLY WITH COURT ORDERS OBJECTIONS, IF ANY, DUE IN FOURTEEN DAYS 16 17 18 Plaintiff Luis Villegas is a state prisoner proceeding without counsel in this civil rights 19 20 action brought under 42 U.S.C. § 1983. On March 5, 2019, defendant Medina moved for 21 summary judgment on the ground that plaintiff failed to exhaust his administrative remedies 22 before filing suit. ECF No. 28. Plaintiff had twenty-one days to oppose defendant’s motion 23 under Local Rule 230(l), but he failed to do so. Instead of opposing defendant’s motion, plaintiff 24 moved for the appointment of counsel. ECF No. 31. On April 3, 2019, the court denied 25 plaintiff’s motion and ordered him to respond to defendant’s motion for summary judgment 26 within twenty-one days. ECF No. 32. Plaintiff failed to respond, thereby disobeying the court’s 27 order. 28 The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply with a 1 1 court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 2 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court has duties 3 to resolve disputes expeditiously and to avoid needless burden for the parties. See 4 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 5 In considering whether to dismiss a case for failure to prosecute, a court ordinarily 6 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 7 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 8 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 9 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 10 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 11 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 12 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 13 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 14 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 15 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 16 dismissal. 17 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 18 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 19 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 20 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 21 weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the court that would constitute a satisfactory lesser sanction while protecting the court 24 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 25 considering plaintiff’s apparent inability to pay the filing fee, and—given the stage of these 26 proceedings—the preclusion of evidence or witnesses is not available. Accordingly, the fourth 27 factor also weighs in favor of dismissal. 28 2 1 2 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. After weighing the factors, including the court’s need to manage its docket, the court finds 3 4 that dismissal is appropriate. The court recommends dismissal without prejudice. 5 FINDINGS AND RECOMMENDATIONS 6 The court recommends that the case be dismissed for plaintiff’s failures to prosecute and 7 comply with court orders. The undersigned submits these findings and recommendations to the 8 U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. 9 Within 14 days of the service of the findings and recommendations, the parties may file written 10 objections to the findings and recommendations with the court and serve a copy on all parties. 11 The document containing the objections must be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” The presiding district judge will then review the findings and 13 recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections within 14 the specified time may waive their rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 15 (9th Cir. 2014). 16 17 IT IS SO ORDERED. 18 Dated: 19 May 13, 2019 UNITED STATES MAGISTRATE JUDGE 20 21 22 No. 203 23 24 25 26 27 28 3

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