(PC) Baker v. Lynch et al

Filing 76

ORDER signed by Magistrate Judge Dennis M. Cota on 6/5/24 GRANTING 72 Defendants' unopposed motion for terminating sanctions. This action is DISMISSED without prejudice. The Clerk is directed to enter judgment. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:19-CV-2617-DMC-P

ORDER

J. HOWARD, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pursuant to the written consent of all parties, this case is before the

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undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

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U.S.C. § 636(c). Pending before the Court is Defendants’ unopposed motion for terminating

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sanctions. See ECF No. 72.
On February 8, 2024, the Court issued an order granting Defendants’ unopposed

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motion to compel Plaintiff to provide further discovery responses and to appear at his deposition.

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See ECF No. 69. Plaintiff was directed to provide discovery within 30 days of the date of the

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Court’s order. See id. Plaintiff was also directed to appear at his properly noticed deposition

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within 45 days of the date of the Court’s order. See id.

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In the pending motion for terminating sanctions, Defendants state that Plaintiff

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appeared for his deposition in March 2024 and, at that time, admitted that he had not served

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further discovery responses as ordered by the Court on February 8, 2024. See ECF No. 72-1

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(declaration of defense counsel). As of the date of filing Defendants’ motion – April 15, 2024 –

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Plaintiff still had not complied with the February 8, 2024, order. Plaintiff has not filed an

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opposition to the pending motion for terminating sanctions.

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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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Given Plaintiff’s failure to comply with the Court’s February 8, 2024, order,

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Plaintiff’s failure to file an opposition to the pending motion, and considering the factors outlined

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above, the Court finds that dismissal of this action as a discovery sanction is warranted. See Fed.

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R. Civ. P. 37(b)(2)(A)(v).

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Accordingly, IT IS HEREBY ORDERED as follows:

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Defendants’ unopposed motion for terminating sanctions, ECF No. 72, is

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This action is DISMISSED without prejudice.

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The Clerk of the Court is directed to enter judgment and close this file.

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GRANTED.

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Dated: June 5, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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