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