Meneweather v. Powell et al

Filing 231

ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE. Signed by Judge Saundra B. Armstrong on 11/15/17. (dtmS, COURT STAFF) (Filed on 11/15/2017)

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UNITED STATES DISTRICT COURT 1 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 OAKLAND DIVISION 4 5 TOMAS LOPEZ MENEWEATHER, Plaintiff, 6 7 8 Case No: C 07-4204 SBA (PR) ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE vs. B. POWELL, et al., 9 Defendants. 10 United States District Court Northern District of California 11 12 Plaintiff Tomas Lopez Meneweather (“Plaintiff”) filed the instant pro se action in 13 this Court on August 16, 2008. Dkt. 1.1 Plaintiff alleged Eighth Amendment violations 14 arising from unsanitary conditions of confinement while he was housed at Salinas Valley 15 State Prison. The Court previously appointed counsel for Plaintiff, but counsel withdrew, 16 citing California’s rules of professional conduct for mandatory and permissive withdrawal. 17 The most recent trial date in this action was February 22, 2016. Dkt. 201. In 18 anticipation of trial, Defendants timely filed their pretrial documents and motions in 19 limine. Dkts. 212-220. However, Plaintiff failed to file any pretrial documents. Instead, 20 well after his filing deadline had passed, Plaintiff filed a renewed motion for appointment 21 of counsel and request for an extension of time to file pretrial documents. Dkts. 221, 222. 22 On August 26, 2016, the Court granted Plaintiff’s requests for an extension and for 23 appointment of counsel, and it re-referred the action to the Federal Pro Bono Project 24 (“FPBP”) to ascertain whether there was pro bono counsel willing to represent Plaintiff in 25 this case. Dkt. 228 at 7. The Court further stated that: “In the event the FPBP is unable to 26 locate suitable counsel within the 30 day referral period, the referral will automatically be 27 28 1 The case was subsequently administratively closed and was recently re-opened. Dkts. 228, 230. 1 deemed withdrawn and a new trial date and deadlines for pretrial documents and other 2 filings will be set.” Id. at 9. Thereafter, the FPBP notified the Court that it has been 3 unable to locate counsel willing to represent Plaintiff in this case. On September 27, 2017, the Court issued an order withdrawing reference from the 4 5 FPBP and directing Plaintiff to file his pretrial documents and responses to Defendants’ 6 motions in limine by no later than October 26, 2017. Dkt. 230 at 3. The Order warned, 7 however, that Plaintiff’s failure to file a response within the additional time prescribed by 8 the Court would result in dismissal of the action. Specifically, the salient portion of the 9 Order states: 10 Plaintiff is warned that in the event he fails to file [the requisite pretrial documents] by October 26, 2017, the Court will dismiss the action with prejudice. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (affirming dismissal of habeas petition because of petitioner’s disobedience with orders setting filing deadlines); see also Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995) (affirming dismissal of prisoner’s civil rights complaint for failure to file opposition to motion to dismiss as required by local rule). United States District Court Northern District of California 11 12 13 14 15 16 17 18 Dkt. 20 at 2. To date, Plaintiff has not filed the requisite pretrial documents or otherwise corresponded with the Court.2 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 19 20 21 22 23 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992); see also Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (“[t]he authority of the federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted.”). “In determining whether to dismiss a claim for failure to prosecute or failure to 24 25 26 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 27 2 28 On November 7, 2017, this action was inadvertently referred to Magistrate Judge Robert M. Illman for settlement. This referral was done in error, and it is thus withdrawn. 2 1 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 2 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 3 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Court finds that these 4 factors weigh in favor of dismissal. 5 With regard to the first factor, “[t]he public’s interest in expeditious resolution of 6 litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 7 1999). Likewise, the second factor—the Court’s need to manage its docket—also favors 8 dismissal. Plaintiff’s failure to file timely pretrial documents and responses to Defendants’ 9 motions in limine, despite having two opportunities and more than ample time to do so, has unreasonably undermined the Court’s ability to manage and move toward an 11 United States District Court Northern District of California 10 expeditious resolution of this case. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon 12 the Court to manage its docket without being subject to routine noncompliance of 13 litigants”). 14 The third factor, the risk of prejudice to the defendants, generally requires that “a 15 defendant . . . establish that plaintiff’s actions impaired defendant’s ability to proceed to 16 trial or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d 17 at 642. At the same time, the Ninth Circuit has “related the risk of prejudice to the 18 plaintiff’s reason for defaulting.” Id. Here, Plaintiff has previously complained that his 19 medical problems and disabilities were preventing him from representing himself in this 20 action; however, the Court has reviewed Plaintiff’s medical and mental health records 21 (submitted under seal) and determined above that these records do not support such 22 complaints. Dkt. 228 at 6-7, 8. At this time, Plaintiff neither raises his aforementioned 23 medical problems as a reason for his failure to file the requisite pretrial documents nor 24 does he offer any other explanation, and an explanation is not apparent from the record. 25 This factor thus weighs strongly in favor of dismissal. See Yourish, 191 F.3d at 991. 26 As to the fourth factor, the Court has already considered less drastic alternatives to 27 dismissal. In its June 24, 2015 Order for Pretrial Preparation and its July 31, 2015 28 Amended Order for Pretrial Preparation, the Court gave Plaintiff the following “Pro Se 3 1 2 3 4 5 6 7 Warning”: Plaintiff should be aware that although he is acting pro se (i.e., without an attorney) he nevertheless remains obligated to follow the same rules as a party who is represented by an attorney. Ignorance of court rules does not constitute excusable neglect. Plaintiff is warned that the failure to comply with any order or applicable procedural rule, including the failure meet and any filing deadline specified in this Order or by the Local Rules or Federal Rules of Civil Procedure, will be deemed grounds for the imposition of sanctions, up to and including the dismissal of the action with prejudice, pursuant to Federal Rule of Civil Procedure 41(b). 8 9 Dkt. 202 at 6-7; Dkt. 205 at 6-7. Thus, when Plaintiff initially failed to file his pretrial documents by the required deadline, the Court could have dismissed the action 11 United States District Court Northern District of California 10 immediately pursuant to Rule 41(b). In consideration of less drastic alternatives, however, 12 the Court extended Plaintiff’s deadline to respond, thereby granting him ample opportunity 13 to prepare his pretrial documents. Dkt. 228 at 7-8. As explained above, the Court again 14 warned Plaintiff that the failure to respond would result in the dismissal of the action. See 15 id. at 8. “[A] district court’s warning to a party that failure to obey the court’s order will 16 result in dismissal can satisfy the ‘consideration of [less drastic sanctions]’ requirement.” 17 Ferdik, 963 F.2d at 1262. 18 Although the final factor favoring disposition of cases on the merits, by definition, 19 weighs against dismissal, see Pagtalunan, 291 F.3d at 643 (“Public policy favors 20 disposition of cases on the merits. Thus, this factor weighs against dismissal.”), the Court 21 finds that, on balance, the pertinent factors militate in favor of such action. Id. (affirming 22 dismissal where three or the five factors favored dismissal). Accordingly, 23 IT IS HEREBY ORDERED THAT the instant action is DISMISSED without 24 prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Court withdraws the 25 referral to Magistrate Judge Illman for settlement, which was done in error. The Clerk of 26 the Court shall close the file and terminate all pending matters and deadlines. 27 28 IT IS SO ORDERED. 4 1 2 Dated: November 15, 2017 ______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TOMAS LOPEZ MENEWEATHER, Case No. 07-cv-04204-SBA Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 B. POWELL, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 15, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 21 22 Tomas Lopez Meneweather ID: D35219 California Health Care Facility (CHCF) PMB 32200 Stockton, CA 95213 Dated: November 15, 2017 23 24 25 26 27 Susan Y. Soong Clerk, United States District Court By:________________________ Doug Merry, Deputy Clerk to the Honorable SAUNDRA BROWN ARMSTRONG 28 6

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