DaSilva v. City of Montana et al
ORDER DISMISSING CASE. Any appeal of this decision would not be taken in good faith. Signed by Magistrate Judge John Johnston on 1/8/2019. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ROBERT AYRES DASILVA, JR.,
CASCADE COUNTY DETENTION
CENTER, DAN O’FALLON, BOB
EDWARDS, NATHAN BENNETT,
CORY LIGHT, JACOB VAN ZUYT,
JUSTIN TIBBITTS, BLAYNE
GAMEON, VALENTINE WALTERS,
and PATRICIA LAMMERS,
Plaintiff Robert DaSilva is a former prisoner proceeding in forma pauperis
and without counsel. On October 26, 2018, Defendants filed a motion in limine
and a motion for summary judgment. (Docs. 75, 77.) Mr. DaSilva did not respond
and on December 7, 2018, this Court issued an order to show cause why this matter
should not be dismissed for failure to prosecute. (Doc. 81.) Mr. DaSilva did not
respond to the order to show cause.
Based upon Mr. DaSilva’s failure to respond to Defendants’ Motion in
Limine (Doc. 75) and Defendants’ Motion for Summary Judgment (Doc. 77) and
failure to respond to the Court’s December 7, 2018 Order, this matter will be
dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
The Court has the inherent power to sua sponte dismiss a case for lack of
prosecution or failure to comply with a court order. Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986); see also Fed.R.Civ.P. 41(b); Ferdik v. Bonzelet,
963 F.2d 1258, 1260 (9th Cir. 1992). Dismissal, however, is a harsh penalty and
should be imposed as a sanction only in extreme circumstances. Henderson, 779
F.2d at 1423.
The following factors must be considered before dismissal is imposed as a
sanction for failure to prosecute or failure to comply with a court order: (1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to
manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the
availability of less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir.
2002) (citing Ferdik, 963 F.2d at 1260-61).
“The public’s interest in expeditious resolution of litigation always favors
dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
This case is at a critical stage in that discovery has closed and a dispositive motion
has been filed. Mr. DaSilva failed to respond to the dispositive motion and to this
Court’s recent Order. This factor weighs in favor of dismissal.
For much the same reasons, the second factor supports dismissal. The Ninth
Circuit has noted that “[i]t is incumbent upon us to preserve the district courts’
power to manage their docket without being subject to the endless vexatious
noncompliance of litigants. . . .” Ferdik, 963 F.2d at 1261. “The trial judge is in
the best position to determine whether the delay in a particular case interferes with
docket management and the public interest.” Pagtalunan, 291 F.3d 639 (citing
Yourish, 191 F.3d 983). The Court must be able to manage its docket. It cannot do
so if Mr. DaSilva refuses to comply with Court imposed deadlines. Therefore, this
factor favors dismissal.
The third factor requires the Court to weigh the risk of prejudice to the
Defendants. “To prove prejudice, a defendant must establish that plaintiff’s
actions impaired defendant’s ability to proceed to trial or threatened to interfere
with the rightful decision of the case.” Malone v. United States Postal Service, 833
F.2d 128, 131 (9th Cir. 1987). Mr. DaSilva’s refusal to litigate this matter makes
prejudice a foregone conclusion. The longer this matter sits, the more prejudice to
The Court has considered and provided less drastic alternatives.
Alternatives may include “allowing further amended complaints, allowing
additional time, or insisting that appellant associate experienced counsel.” Nevijel
v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981). Although
less drastic alternatives to dismissal should be considered, the court is not required
to exhaust all such alternatives prior to dismissal. Id. The Court gave Mr. DaSilva
an opportunity to explain why he failed to respond to Defendants’ motions (Doc.
81) and he did not respond. The Court can envision no further alternatives to
The last factor weighs against dismissal because public policy favors the
disposition of cases on their merits. Pagtalunan, 291 F.3d 639 (citing Hernandez
v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). But in light of the other
four factors favoring dismissal, the Court finds that this matter should be dismissed
for failure to prosecute and failure to comply with the Court’s order.
Based upon the foregoing, the Court issues the following:
1. This matter is DISMISSED pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. The Clerk of Court is directed to close this matter, enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure, and
terminate all pending motions.
2. The Clerk of Court is directed to have the docket reflect that the Court
certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith.
DATED this 8th day of January, 2019.
/s/ John Johnston
United States Magistrate
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