Espino v. Arnold

Filing 55

ORDER signed by District Judge Dale A. Drozd on 1/30/23 ADOPTING in full 54 Findings and Recommendations and GRANTING 46 Defendants' motion to dismiss. Defendants' 48 motion for summary judgment is DENIED as having been rendered moot by this order. This action is DISMISSED, without prejudice, due to plaintiff's failure to prosecute this action and failure to obey court orders. CASE CLOSED (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN ESPINO, 12 13 14 15 16 No. 2:17-cv-02198-DAD-AC (PC) Plaintiff, v. JASON SPENCER, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING THIS ACTION DUE TO PLAINTIFF’S FAILURE TO PROSECUTE AND OBEY COURT ORDERS (Doc. No. 46, 48, 54) 17 18 19 Plaintiff Martin Espino is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On April 21, 2022 defendants filed a motion to compel discovery responses or, in the 23 alternative to dismiss this action (Doc. No. 46.) On June 15, 2022, after plaintiff failed to file a 24 response to that motion the assigned magistrate judge issued an order requiring plaintiff to either 25 file an opposition to that motion or a statement of non-opposition within thirty days. (Doc. No. 26 48. Plaintiff did not respond to that order within the time provided in any way. On August 2, 27 2022 defendants filed a motion for summary judgment. (Doc. No. 48.) Again, plaintiff did not 28 respond to the motion and, accordingly, the magistrate judge issued an order requiring plaintiff to 1 1 show cause in writing why this case should not be dismissed due to his failure to prosecute. 2 (Doc. No. 53.) Plaintiff did not respond to the order too show cause. Accordingly, on November 3 7, 2022, the assigned magistrate judge issued findings and recommendations recommending that 4 this action be dismissed due to plaintiff’s failure to prosecute and failure to obey court orders. 5 (Doc. No. 54.) To date, no objections to the findings and recommendations have been filed, and 6 the time in which to do so has now passed. 7 Since discovery began approximately one and one-half years ago, plaintiff has not 8 produced any discovery in response to defendants’ requests, nor filed a response to a pending 9 motion to compel discovery. (Id. at 2.) This is despite the magistrate judge finding that 10 defendants have been very accommodating to plaintiff throughout the proceedings by providing 11 timely service of their discovery requests, attempting to meet-and-confer with plaintiff on 12 multiple occasions, and agreeing to multiple extensions for plaintiff to respond to defendants’ 13 discovery requests. (Id. at 2–3.) Moreover, on more than one occasion, plaintiff has been warned 14 that his failure to comply with court orders or otherwise participate in this case would result in 15 dismissal of his case. (Id. at 3.) For example, on June 15, 2022, plaintiff was ordered to file a 16 response to the instant motion; and, on September 27, 2022, plaintiff was given 30 days to show 17 cause why this matter should not be dismissed for failure to prosecute. (Id.) On both occasions, 18 plaintiff was cautioned that his failure to comply with the court’s order might result in dismissal, 19 but plaintiff failed to file a response to either of the court’s orders or otherwise communicate with 20 the court. (Id.) The pending findings and recommendations were served on plaintiff at his 21 address of record and contained notice that any objections thereto were to be filed within fourteen 22 (14) days after service.1 (Doc. No. 54 at 4.) 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 24 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 25 1 26 27 28 The service copy of the findings and recommendations was mailed to plaintiff at his address of record and was returned to the court marked as, “Undeliverable, Return To Sender.” Thus, plaintiff was required to file a notice of his change of address with the court no later than January 23, 2023. To date, plaintiff has not filed a notice of his change of address or otherwise communicated with the court. The court notes that the prior orders that plaintiff failed to obey were successfully served on plaintiff. 2 1 findings and recommendations are supported by the record and by proper analysis. 2 Accordingly: 3 1. 4 The findings and recommendations issued on November 7, 2022 (Doc. No. 54) are adopted in full; 5 2. Defendants’ motion to dismiss (Doc. No. 46) is granted; 6 3. Defendants’ motion for summary judgment (Doc. No. 48) is denied as having been 7 rendered moot by this order; 8 4. 9 This action is dismissed, without prejudice, due to plaintiff’s failure to prosecute this action and failure to obey court orders; and 10 5. 11 IT IS SO ORDERED. 12 Dated: The Clerk of the Court is directed to close this case. January 30, 2023 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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