Cobb v. Cook et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/5/2014 RECOMMENDING that plaintiff's civil action be dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b) as well as Local Rules 110 and 183(a); and the Clerk be directed to close this case and vacate all dates. Referred to Judge John A. Mendez; Objections due within 21 days. The Clerk is DIRECTED to serve a copy of this order on plaintiff at PVSP PO Box 8500, Coalinga, CA 93210. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PABLO COBB,
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No. 2:12-cv-01666 JAM AC P
Plaintiff,
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v.
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SALINAS, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil rights
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action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule
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302 pursuant to 28 U.S.C. § 636(b)(1).
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I.
Background
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On June 21, 2012, plaintiff filed the instant civil rights action. ECF No. 1. This court
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screened the initial complaint on September 25, 2012 and found that it stated colorable claims
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against Defendants Cook and Akintola. ECF No. 7. It dismissed the complaint against
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Defendant Weinholdt with leave to amend. Id. Based on plaintiff’s failure to file an amended
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complaint, the case proceeded against Defendants Cook and Akintola. ECF Nos. 10, 11, 16.
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Plaintiff filed the service documents for these defendants on December 10, 2012. ECF No. 13.
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That was the last action that plaintiff took to prosecute this civil action.
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Since that time, plaintiff has failed to return an additional service document for Defendant
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Cook after the initial summons was returned unexecuted. See ECF Nos. 18, 19. Therefore,
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Defendant Cook was never served. However, Defendant Akintola has not only answered the
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complaint, but also filed numerous motions in this case to which plaintiff has never responded.
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See ECF Nos. 20, 26, 28, 29.
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Prior to resolving defendant’s second summary judgment motion, the court issued plaintiff
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an order to show cause why this case should not be involuntarily dismissed for his failure to
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prosecute. ECF No. 31. Plaintiff has once again failed to respond to this court’s order. In the
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order to show cause, plaintiff was warned that his failure to respond would result in a
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recommendation that his action be involuntarily dismissed with prejudice for failure to prosecute.
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ECF No. 31 at 2.
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II.
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Discussion
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action
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for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to
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comply with the court's local rules, or failure to comply with the court's orders.1 See, e.g.,
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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte
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to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest
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Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant
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to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply
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with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
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(9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss
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an action for failure to comply with any order of the court.”), cert. denied, 506 U.S. 915 (1992);
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Pagtalunan v. Galaza, 291 F.3d 639, 642–43 (9th Cir. 2002) (affirming district court's dismissal
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of case for failure to prosecute when habeas petitioner failed to file a first amended petition), cert.
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denied, 538 U.S. 909 (2003). This court's Local Rules are in accord. See E.D. Cal. Local Rule
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110 (“Failure of counsel or of a party to comply with these Rules or with any order of the Court
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Rule 41(b) provides, in part: “(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” Fed.R.Civ.P. 41(b).
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may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule
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or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se
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party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and
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other applicable law may support, among other things, dismissal of that party's action).
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A court must weigh five factors in determining whether to dismiss a case for failure to
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prosecute, failure to comply with a court order, or failure to comply with a district court's local
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rules. See Ferdik, 963 F.2d at 1260. Specifically, the court must consider: (1) the public's
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interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the
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risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
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merits; and (5) the availability of less drastic alternatives. Id. at 1260–61; accord, Pagtalunan,
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291 F.3d at 642–43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838
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(1995). The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of
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conditions precedent before the judge can do anything, but a way for a district judge to think
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about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226
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(9th Cir. 2006).
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Although involuntary dismissal can be a harsh remedy, on balance the five relevant
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factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal.
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Plaintiff's failure to return service documents, to respond to discovery requests or to defendant’s
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summary judgment motions, as well as his lack of response to this court’s order to show cause
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despite clear warnings of the consequences for such failures, strongly suggest that plaintiff has
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abandoned this action or is not interested in seriously prosecuting it. See Yourish v. Cal.
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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public's interest in expeditious resolution of
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litigation always favors dismissal.”). Any further time spent by the court on this case, which
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plaintiff has demonstrated a lack of any serious intention to pursue, will consume scarce judicial
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resources and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that
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district courts have inherent power to manage their dockets without being subject to noncompliant
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litigants).
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The third factor in Ferdik also supports dismissal of this action. Based on plaintiff’s
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numerous failures to respond, defendant has expended considerable resources in not only
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answering the complaint, but also in filing a motion to compel as well as a motion for summary
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judgment. At a minimum, the defendant has been prevented from attempting to resolve this case
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on the merits by plaintiff's unreasonable delay in prosecuting this action. Unreasonable delay is
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presumed to be prejudicial. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at
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1227.
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The fifth factor, which considers the availability of less drastic measures, also supports
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dismissal of this action. As noted above, the court has actually pursued remedies that are less
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drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132
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(9th Cir.1987) (stating that an “explicit discussion of alternatives is unnecessary if the district
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court actually tries alternatives before employing the ultimate sanction of dismissal.”), cert.
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denied, 488 U.S. 819 (1988). The court excused plaintiff's initial failure to file a response to
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defendant’s motion for summary judgment, provided plaintiff with additional time to do so, and
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granted plaintiff an opportunity to explain his failure to prosecute the instant civil action. See
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ECF Nos. 30, 31. Moreover, the court advised plaintiff that he was required to actively prosecute
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this action and to follow the court's orders. ECF No. 31. It also warned plaintiff in clear terms
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that failing to respond to the order to show cause would result in a recommendation of dismissal
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with prejudice. Id. Warning a plaintiff that failure to take steps towards resolution of his or her
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action on the merits will result in dismissal satisfies the requirement that the court consider the
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alternatives. See Ferdik, 963 F.2d at 1262 (“[O]ur decisions also suggest that a district court's
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warning to a party that his failure to obey the court's order will result in dismissal can satisfy the
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‘consideration of alternatives' requirement.”) (citing Malone, 833 F.2d at 132–33). At this
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juncture, the court finds no suitable alternative to a recommendation for dismissal of this action.
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This finding is supported by the fact that plaintiff is proceeding in forma pauperis and thus would
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very likely be unable to pay any monetary sanction imposed in lieu of dismissal.
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The court also recognizes the importance of giving due weight to the fourth factor, which
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addresses the public policy favoring disposition of cases on the merits. However, for the reasons
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set forth above, factors one, two, three, and five strongly support a recommendation of dismissal
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of this action, and factor four does not trump the remaining factors. Dismissal is proper “where at
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least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.”
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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks
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omitted). Under the circumstances of this case, the other relevant factors outweigh the general
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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s civil action be dismissed with prejudice pursuant to Rule 41(b) of the
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Federal Rules of Civil Procedure as well as Local Rules 110 and 183(a).
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2. The Clerk of Court be directed to close this case and vacate all dates.
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3. The Clerk of Court is directed to serve an additional copy of this order on plaintiff at
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the following address: Pablo Cobb, P-02336, Pleasant Valley State Prison, P.O. Box 8500,
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Coalinga, California 93210.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 5, 2014
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