McClintock v. Colosimo, et al

Filing 51

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 02/10/15 recommending that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN MCCLINTOCK,

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No. 2:13-cv-0264 TLN DAD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

COLOSIMO et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action brought pursuant to 42 U.S.C. § 1983. For the reasons discussed herein, the court will

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recommend that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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BACKGROUND
On August 15, 2014, counsel on behalf of defendants Casillas and Merriweather filed a

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motion for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies

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prior to filing suit as required. (Doc. No. 35) On August 26, 2014, plaintiff filed a motion to stay

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this action in light of an interlocutory appeal he had filed challenging the undersigned‟s order

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denying him appointment of counsel. (Doc. No. 38) On October 28, 2014, the undersigned

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denied plaintiff‟s motion for a stay as having been rendered moot because the Ninth Circuit had

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dismissed plaintiff‟s interlocutory appeal for lack of jurisdiction. (Doc. No. 43) The undersigned

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also ordered plaintiff to file an opposition to defendants‟ motion for summary judgment. (Id.)
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Instead of filing an opposition to defendants‟ motion, however, plaintiff filed a motion for

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reconsideration of the court‟s order denying his motion for a stay because plaintiff had since filed

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a motion for reconsideration with the Ninth Circuit. (Doc. No. 44) On January 8, 2015, the

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undersigned denied plaintiff‟s motion for reconsideration as also having been rendered moot

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because the Ninth Circuit by that time had already denied plaintiff‟s motion for reconsideration

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filed in that court and informed plaintiff that it would not entertain any further filings from him in

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that closed case. (Doc. No. 45) Once again, the undersigned then ordered plaintiff to file an

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opposition to defendants‟ motion for summary judgment, specifically warning plaintiff that no

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further delay would be tolerated and that “any failure on his part to file an opposition to

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defendants‟ motion for summary judgment in compliance with this order will result in a

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recommendation that this action be dismissed.” (Id.) Nonetheless, the time for plaintiff to file his

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opposition to defendants‟ long-pending motion for summary judgment has now expired, and

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plaintiff still has not filed any opposition to that motion. Rather, plaintiff has filed yet another

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interlocutory appeal of the undersigned‟s order denying him appointment of counsel, which the

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Ninth Circuit recently dismissed as duplicative of plaintiff‟s prior appeal. (Doc. Nos. 46 & 49)

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DISCUSSION

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). In Ferdik, the Ninth Circuit Court of Appeals held that the district court did

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not abuse its discretion when it dismissed a pro se litigant‟s civil rights action for failing to file an

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amended complaint. The court explained that, in deciding whether to dismiss a case for a

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litigant‟s failure to comply with a court order, the district court must weigh five factors:
“(1) the public‟s interest in expeditious resolution of litigation; (2)
the court‟s need to manage its docket; (3) the risk of prejudice to
the defendants; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic alternatives.”

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Id. at 1260-61 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.3d 829, 831 (9th

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Cir. 1986).

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In this case, the first two factors as well as the fifth factor cited by the court in Ferdik

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strongly support dismissal of this action. This case has been pending before the court since

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February 11, 2013, and has some time ago reached the summary judgment stage of litigation.

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Plaintiff‟s repeated failure to comply with court orders and the Local Rules strongly suggests that

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further time spent by the court on this case will consume scarce judicial resources in addressing

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litigation which plaintiff has demonstrated he has no intention to diligently pursue. Notably, the

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court specifically warned plaintiff in its January 8, 2015 order that it would not tolerate further

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delay with respect to consideration of defendants‟ motion for summary judgment and that any

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failure on plaintiff‟s part to file an opposition to that motion would result in a recommendation

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that this action be dismissed. Inexplicably, plaintiff not only failed to file any opposition to

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defendants‟ motion for summary judgment as required, but instead, he has again filed a

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duplicative interlocutory appeal, which the Ninth Circuit has already dismissed. Under these

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circumstances, there is no suitable less drastic alternative to dismissal of this case. In short,

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plaintiff‟s repeated refusal to follow the court‟s orders has left the court stymied and made it

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impossible for this civil action to be adjudicated by the court. Therefore, due to plaintiff‟s

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conduct, the undersigned is left with no choice but to recommend dismissal of this action.

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The third factor, the risk of prejudice to the defendants, also weighs in favor of dismissal.

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Plaintiff‟s failure to oppose defendants Casillas and Merriweather‟s motion for summary

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judgment prevents these defendants from addressing plaintiff‟s claims and unnecessarily delays

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resolution of this action thereby forcing all of the defendants to incur additional time and expense.

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See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) (“When considering prejudice to the

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defendant, „the failure to prosecute diligently is sufficient by itself to justify dismissal, even in the

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absence of a showing of actual prejudice to the defendant from the failure…. The law presumes

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injury from unreasonable delay.‟”) (quoting Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

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1976)).

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Finally, the fourth factor, public policy favoring disposition of cases on the merits, weighs

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against dismissal of this action. However, for the reasons set forth above, the first, second, third,

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and fifth factors support dismissal. Under the circumstances of this case, those factors outweigh

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the general public policy favoring disposition of cases on their merits.

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CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to
Federal Rule of Civil Procedure 41(b).

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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 fourteen 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 reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 10, 2015

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DAD:9
mccl0264.57

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