Rucker v. Western Sierra Medical Clinic

Filing 9

ORDER & FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/10/17 ORDERING that the hearing date of October 18, 2017 on defendant's motion to dismiss is VACATED; and RECOMMENDING that this action be dismissed with prejudice; and the Clerk be directed to close this case; Referred to Judge Morrison C. England, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ALBERT RUCKER,

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Plaintiff,

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No. 2:17-cv-01359 MCE CKD (PS)

v.

ORDER &

WESTERN SIERRA MEDICAL CLINIC,
et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On July 10,

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2017, defendant United States of America filed a motion to dismiss.1 The motion was noticed to

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be heard on September 13, 2017.
On September 5, 2017, because plaintiff had not filed either an opposition or a statement

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of non-opposition to the motion, the undersigned continued the hearing on the motion to October

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18, 2017 and directed plaintiff to file an opposition to the motion, or a statement of non-

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opposition thereto, no later than October 4, 2017. Plaintiff was advised that failure to file an

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As to defendant Western Sierra Medical Clinic: Plaintiff seeks damages for the alleged acts and
omissions of medical personnel at defendant clinic, a deemed employee of the Public Health
Service within the United States Department of Health and Human Services. Because the clinic
functions as a federal employee, plaintiff’s action arises under the Federal Tort Claims Act, such
that the United States is the proper defendant. (See ECF Nos. 1-2 & 6-1.)
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opposition would be deemed a statement of non-opposition to the pending motion and would

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result in a recommendation that this action be dismissed.

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Although the deadlines have now passed, the court docket reflects that plaintiff has not

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filed an opposition to the motion or a statement of non-opposition to the motion. The Federal

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Rules of Civil Procedure provide for dismissal of actions based on lack of prosecution. Fed. R.

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Civ. P. 41(b). Pro se litigants are bound by the rules of procedure, even though pleadings are

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liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In

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determining whether to dismiss for lack of prosecution, generally the court considers (1) the

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public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its docket,

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(3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on

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their merits, and (5) the availability of less drastic sanctions. See, e.g., Al-Torki v. Kaempen, 78

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F.3d 1381, 1384 (9th Cir. 1996). The court may dismiss a case sua sponte for lack of prosecution

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by the plaintiff. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428 (9th Cir.

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1990). Sua sponte dismissal requires a “close focus” on consideration of “less drastic

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alternatives” and whether or not there has been a “warning of imminent dismissal of the case.”

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Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992).

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In determining that this action will be dismissed, the court has considered all the factors

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set forth in Al-Torki. The first two factors on their face favor the imposition of sanctions in this

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case brought by plaintiff and which has been proceeding forward since plaintiff initiated this

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action on February 22, 2017. See Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

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Regarding the third factor, defendant already has briefed its motion to dismiss, and would be

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prejudiced by the need for further litigation of this matter despite plaintiff’s non-responsiveness.

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Moreover, delay itself generally is prejudicial -- witness memories fade and evidence becomes

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stale or undiscoverable. While the fourth factor favors resolution on the merits, in this case

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plaintiff has declined to oppose the motion to dismiss and thus has precluded the court’s

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evaluation of the potential merits of such an opposition.

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Focusing on the fifth Al-Torki factor and warning regarding imminent dismissal, as

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required by Oliva, the court in its order of September 5, 2017 has advised plaintiff that this action
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is subject to dismissal, directed plaintiff to file opposition, and granted ample additional time to

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oppose the pending motion after plaintiff failed to timely oppose defendant’s motion to dismiss,

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all to no avail. In light of plaintiff’s failures, the court concludes there is no suitable alternative

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less drastic sanction to dismissal. The undersigned will therefore recommend that this action be

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dismissed for failure to prosecute the action and for failure to comply with court orders and Local

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Rules. See Fed. R. Civ. P. 41(b); L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that the hearing date of October 18, 2017 on
defendant’s motion to dismiss is vacated; and
IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed with prejudice; and

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2. The Clerk of Court be directed to close this case.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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

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Dated: October 10, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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