Patrick v. Hitchcock, et al.

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/16/2021 RECOMMENDING 36 Motion for Terminating Sanctions be granted. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS PATRICK,

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Plaintiff,

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No. 2:17-CV-1045-TLN-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

MCINTYRE, et al.,

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Defendants.

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Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the Court is Defendants’ motion, ECF No. 36, to dismiss this

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action as an appropriate sanction for non-compliance with a prior order requiring Plaintiff to

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appear at his deposition and pay reasonable monetary sanctions. Plaintiff has not opposed the

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motion.

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On March 13, 2020, Defendants filed a motion to compel Plaintiff’s attendance at

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his deposition. See ECF No. 33. On June 12, 2020, the Court granted Defendants’ motion. See

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ECF No. 34. The Court directed Plaintiff to appear at his re-noticed deposition. See id. at 4. The

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Court also ordered Plaintiff to pay $4,156.55 in reasonable costs within 30 days of the date of the

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Court’s order. See id. Plaintiff was warned that failure to comply could result in terminating

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sanctions. See id. at 3.

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In their motion for terminating sanctions, Defendants argue that Plaintiff has failed

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to comply with the Court’s order to reimburse defendants reasonable costs associated with their

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motion to compel. See ECF No. 36, pg. 3. Plaintiff has offered no response.

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The court must weigh five factors before imposing the harsh sanction of dismissal.

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See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal

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Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of

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prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

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sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

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833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where

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there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986). Dismissal has also been held to be an appropriate sanction for failure to follow local rules,

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see Ghazali, 46 F.3d at 53, failure to comply with an order to file an amended complaint, see

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), failure to inform the district court

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and parties of a change of address pursuant to local rules, see Carey v. King, 856 F.2d 1439,

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1440-41 (9th Cir. 1988) (per curiam), failure to appear at trial, see Al-Torki v. Kaempen, 78 F.3d

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1381, 1385 (9th Cir. 1996), and discovery abuses, see Henry v. Gill Indus., Inc., 983 F.2d 943,

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948 (9th Cir. 1993).

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The Court finds that, on balance, these factors weigh in favor of dismissal. First,

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Plaintiff’s failure to appear at his deposition thwarts the public’s interest in expeditious resolution

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of this case. Second, Defendants have been prejudiced in that they have been unable to obtain

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necessary discovery and, following Plaintiff’s failure to appear at his deposition, they had to

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expend significant resources – which Plaintiff has not reimbursed despite being order to do so –

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in obtaining an order from the Court compelling Plaintiff’s attendance. Third, the Court clearly

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warned Plaintiff that failure to comply with the June 12, 2020, order could result in terminating

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sanctions, thus providing Plaintiff an opportunity for a less drastic sanction. Additionally, this
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Court has in countless prior cases dismissed actions solely for failure to pay filing fees or

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monetary sanctions. Finally, the Court observes that Plaintiff has not filed any opposition or

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otherwise responded to Defendants’ motion.

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Based on the foregoing, the undersigned recommends that Defendants’ motion,
ECF No. 36, for terminating sanctions be granted.

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These findings and recommendations are submitted to the United States District

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

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after being served with these findings and recommendations, any party may file written objections

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with the Court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 16, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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