United States District Court, S.D. California
October 21, 2005.
ERNESTO WADE, Plaintiff,
RATELLA, ET AL., Defendants.
The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION
FOR JUDGMENT ON THE PLEADINGS AND GRANTING DEFENDANTS' MOTION TO
DISMISS COMPLAINT [Doc. Nos. 36-37]
Plaintiff Ernesto Wade, a state prisoner currently incarcerated
at the California State Prison, Los Angeles, and proceeding pro
se, brings his Complaint pursuant to the Civil Rights Act,
42 U.S.C. § 1983. Plaintiff claims that by using excessive force
upon him and by subsequently failing to treat his resultant
injuries, correctional officers and administrative staff employed
at Richard J. Donovan Correctional Facility (RJD) violated his
Eighth amendment rights.
Upon review of the documents and evidence presented in this
case, and for the reasons set forth below, the Court recommends
that Defendants' Motion for Judgment on the Pleadings be
GRANTED, and Defendants' Motion to Dismiss Complaint be
GRANTED. PROCEDURAL BACKGROUND
Plaintiff instituted this action on March 21, 2003, naming as
defendants Ratella, the RJD Warden; P. Magee, the RJD associate
Warden; RJD correctional officers D.W Clark, J.S. Roberts, Mason,
and Alvarez; and Mark R. Katz, M.D., RJD's Health Care
Manager/Chief Medical Officer ("Defendants"). Doc. No. 1. On June
11, 2003, Judge Judith N. Keep granted Plaintiff's Motion to
Proceed in Forma Pauperis, and directed the United States Marshal
to effect service of process on Defendants. Doc. No. 3. On
December 16, 2003, Defendants answered Plaintiff's Complaint,
denying all liability and asserting numerous affirmative
defenses, including the defense that Plaintiff's claims are
barred by the statute of limitations. Doc. No. 8. On January 16,
2004, Plaintiff filed a Motion for Appointment of Counsel. Doc.
No. 12. The Court denied Plaintiff's motion on February 18, 2004.
Doc. No. 15.
On March 4, 2005, Defendants filed an Ex Parte Application to
File Dispositive Motions Beyond Hearing Deadline. Doc. No. 32.
This Court granted Defendants' Ex Parte Application on March 22,
2005. Doc. No. 35. Accordingly, Defendants filed the instant
Motion for Judgment on the Pleadings and to Dismiss Complaint
that same day.*fn1 Doc. No. 36. Plaintiff has yet to file an
opposition to this motion.*fn2 FACTUAL BACKGROUND
Plaintiff alleges that he sustained serious back injuries when
multiple correctional officers forcibly restrained him while
transporting him to an Inmate Classification Committee (ICC)
hearing on May 19, 1998. Complaint at 3, 5. According to
Plaintiff, he refused to attend the ICC hearing after having been
informed by RJD staff that his presence was not required by law,
opting instead to spend time in the prison yard. Id. Plaintiff
claims that after he refused to attend the hearing and as he
began to walk to the yard, correctional officers Clark, Alvarez,
and Roberts grabbed him, twisted his arms behind his back, and
"slammed" his body to the ground. Id. at 5. Next, Plaintiff
states that correctional officer Alvarez pressed his knee hard
against Plaintiff's neck, correctional officers Clark and Roberts
"slammed" their knees into Plaintiff's spine, and correctional
officers Clark, Roberts, Alvarez, and Mason placed restraints on
Plaintiff's wrists and ankles. Id. Once restrained, Plaintiff
asserts that the four correctional officers transported him to
the hearing site stomach down, holding him by only the chains
between his wrist and ankle restraints. Id. As a result,
Plaintiff contends that his arms were swollen and bleeding, his
head was bruised and swollen, his neck was stiff with pain, and
his groin area was sore to the touch. Id.
Upon his arrival at the site of the ICC hearing, Plaintiff
insists that he informed the officers present of those injuries
he sustained as a result of the correctional officers' use of
excessive force, and requested medical treatment. Id. at 5-6.
Despite repeated requests for such treatment, Plaintiff asserts
that he was not examined by a physician until at least one week
after the incident. Id. at 7. Some time thereafter, Plaintiff
states that his treating physician reviewed all x-rays taken and
provided him with a referral to see a back specialist. Id.
Plaintiff claims, however, that he was transferred to another
prison, and ultimately was never provided the opportunity to
receive treatment from the specialist. Id.
On April 5, 2000, Plaintiff filed the first of three formal
inmate appeals claiming that RJD failed to provide him medical
treatment for his injuries. Id. at Ex. A. Specifically,
Plaintiff declared that although RJD medical staff prescribed him
pain medication, allergies prevented him from taking the
medication as directed. Id. As such, Plaintiff requested that
he not only be treated by a back specialist, but also that he be
issued a soft mattress and a new cane. Id. In response, on May
3, 2000, prison physician Hunt examined Plaintiff, referred him
to the resident back specialist and issued him another cane, but
denied his request for a soft mattress. Id.
Dissatisfied with Dr. Hunt's diagnosis and treatment, Plaintiff
filed a second level appeal on May 8, 2000. Id. Upon review,
Plaintiff's appeal was partially granted. Id. For example, on
June 12, 2000, Health Care Manager/Chief Medical Officer Katz informed Plaintiff that an appointment with the
resident back specialist would be made for him, that he could
exchange his then-current cane for another, and that the
specialist could write a chrono*fn3 instructing that
Plaintiff be issued two mattresses. Id. at Ex. B. Once again,
Plaintiff was dissatisfied with these findings and filed a third
appeal. Id. at Ex. A. Upon review, the Inmate Appeals Branch
affirmed the decision of Chief Medical Officer Katz on January
16, 2001. Id. at Ex. C.
Plaintiff alleges that Defendants are liable for his pain,
suffering, and emotional distress resulting from those back,
neck, and leg injuries he sustained at the hands of RJD
correctional officers on May 19, 1998. Id. at 4. Plaintiff
contends that the correctional officer Defendants' use of
excessive force, as well as all Defendants' deliberate
indifference to his serious medical needs both immediately
following the use of force and during the years after the
incident violated his Eighth amendment rights. Id. at 6-8. With
regard to remedy, Plaintiff seeks damages in the amount of
$250,000, and requests adequate medical treatment including
treatment by a back specialist. Id. at 4.
Defendants contend that they are entitled to judgment on the
pleadings pursuant to Federal Rule 12(c). Defs' Amended Mem. at
3-5. For example, Defendants insist that Plaintiff's allegations
are not only barred by the applicable statute of limitations, but
also that Plaintiff's complaint discloses no basis on which to
infer that equitable tolling would be appropriate in this case.
Id. at 4-5. Moreover, Defendants underscore that Plaintiff's
delay prior to filing suit is consistent with his failure to prosecute it
after filing. Id. at 5. Consequently, Defendants request that
Plaintiff's claims be dismissed with prejudice. Id. at 9.
In addition, Defendants argue that Plaintiff's claims must be
dismissed for failure to prosecute diligently. Id. at 5-9. In
support, Defendants first underline that Plaintiff waited nearly
two years after the alleged incident before filing the first of
multiple formal prison appeals. Id. at 2. Second, Defendants
highlight that nearly five years elapsed between the date
Plaintiff's alleged claim for relief accrued and the date on
which he eventually filed suit. Id. Moreover, Defendants note
that since filing his complaint, Plaintiff has done nothing other
than seek court-appointed counsel. Id. at 3. Specifically,
Defendants declare that Plaintiff has neither conducted
discovery, nor complied with any of the requirements to prosecute
his case. Id. Accordingly, Defendants maintain that Plaintiff's
failure to prosecute diligently equally necessitates this case's
dismissal with prejudice. Id. at 9.
A. Judgment on the Pleadings Pursuant to Fed.R.Civ.P.
Federal Rule of Civil Procedure 12(c) provides that "[a]fter
the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). Judgment on the pleadings is "properly granted
when, taking all the allegations in the pleading as true, the
moving party is entitled to judgment as a matter of law." Smith
v. Nat'l Steel & Shipbuilding Co., 125 F.3d 751, 753 (9th Cir.
1997). "A district court will render a `judgment on the pleadings
when the moving party clearly establishes on the face of the pleadings
that no material issue of fact remains to be resolved and that it
is entitled to judgment as a matter of law." George v.
Pacific-CSC Work Furlogh, 91 F.3d 1227, 1229 (9th Cir. 1996),
cert. denied, 519 U.S. 1081 (1997) (quoting Yanez v. United
States, 63 F.3d 870, 872 (9t Cir. 1995)). Judgment "may only be
granted when the pleadings show that it is `beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'" Enron Oil Trading & Transp. Co.
v. Walbrook Ins. Co. Ltd., 132 F.3d 526, 529 (9th Cir. 1997)
(quoting B.F. Goodrich v. Betkowki, 99 F.3d 505, 529 (2d Cir.
1996) (citation omitted)); see also Alexander v. City of
Chicago, 994 F.2d 333, 336 (7th Cir. 1993).
B. Dismissal Pursuant to Fed.R.Civ.P. 41(b)
Federal Rule of Civil Procedure 41(b) provides that a defendant
may move for dismissal of an action or claim for a plaintiff's
failure "to prosecute or to comply with [the Federal Rules] or
any order of court. . . . Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision
. . . operates as an adjudication on the merits." Fed.R.Civ.P.
41(b). In addition, Local Rule 41.1(a) provides that
[a]ctions or proceedings which have been pending in
this court for more than six months, without any
proceeding or discovery having been taken therein
during such period, may, after notice, be dismissed
by the court for want of prosecution, at the calling
of a calendar prepared for that purpose by the clerk.
Such a dismissal shall be without prejudice, unless
Moreover, a district court also has an inherent power sua sponte to dismiss a case for lack of prosecution.*fn4
See McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)
(explaining that the "authority of the court to dismiss sua
sponte for lack of prosecution has generally been considered an
`inherent power,' governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs
so as to achieve the orderly and expeditious disposition of
A. Defendants' Motion for Judgment on the Pleadings
In the instant Motion, Defendants first argue that they are
entitled to judgment on the pleadings. Defs' Amended Mem. at 3-5.
In support, Defendants maintain that Plaintiff's civil rights
allegations are barred by the applicable statute of limitations.
Id. Moreover, Defendants contend that Plaintiff's complaint
fails to disclose any basis on which on infer that equitable
tolling would be appropriate. Id. at 4-5. For his part,
Plaintiff has neither responded to nor addressed Defendants'
1. Statute of Limitations
Actions predicated upon § 1983 are governed by the state
statute of limitations for personal injury actions. See Wilson
v. Garcia, 471 U.S. 261, 269 (1985); Azer v. Connell,
306 F.3d 930, 935 (9th Cir. 2002). Effective January 1, 2003, the
California legislature revised the relevant statute of
limitations for personal injury actions from one to two years. See Maldonado
v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. §
335.1 (West Supp. 2004).
Defendants contend, however, that former California Code of
Civil Procedure § 340(3), a one-year statute of limitations,
applies to all claims in this case. Defs' Amended Mem. at 3-4. In
support, Defendants cite Maldonado, arguing that because the
extension of the statute of limitations did not become effective
until January 1, 2003, and because the extension is only applied
retroactively to victims of the terrorist attacks of September
11, 2001, Plaintiff's claims must be evaluated under the one-year
statute. Id. at 4. Defendants analysis is correct in this
respect. Specifically, because California law instructs that "an
extension of a statute of limitations will not apply to claims
already barred under the prior statute of limitations unless the
Legislature explicitly provides otherwise," and because the
Legislature opted only to apply the extension retroactively to
September 11, 2001 terrorist attack victims, the extension is
inapplicable to Plaintiff's claims. Maldonado, 370 F.3d at 955.
Consequently, California Code of Civil Procedure § 340(3) is
properly applied in this case.
Although state law determines the length of the limitations
period, "federal law determines when a civil rights claim
accrues." Morales v. City of Los Angeles, 214 F.3d 1151,
1153-54 (9th Cir. 2000). "Under federal law, a claim accrues when
the plaintiff knows or has reason to know of the injury which is
the basis of the action." Knox v. Davis, 260 F.3d 1009, 1013
(9th Cir. 2001) (quoting TwoRivers v. Lewis, 174 F.3d 987, 992
(9th Cir. 1999)). In the instant case, Defendants opine that it is undisputed that
Plaintiff's claims accrued on May 19, 1998, the date on which
Defendants allegedly used excessive force against Plaintiff.
Defs' Amended Mem. at 4. According to Plaintiff's complaint,
Plaintiff presumably knew or had reason to know of his injuries,
which he believed to be the result of the correctional officer
Defendants' use of excessive force, on that date. Complaint at 3,
5-6. As such, Defendants are correct that May 19, 1998 is the
date of accrual with regard to Plaintiff's excessive force
Nevertheless, Defendants broad assertion overlooks Plaintiff's
additional civil rights claim: that subsequent to May 19, 1998,
Defendants continuously failed to provide him proper medical care
in violation of his Eighth Amendment rights. Id. at 6-8. This
claim cannot be said to have accrued until Plaintiff's inmate
appeals were exhausted at all levels, which, according to
Plaintiff's complaint, occurred on January 16, 2001. Id. at 2.
Until that date, Plaintiff could neither know nor have reason to
know of the full extent of the medical care he would be provided.
Id.; see also id. at Ex. C.
Accordingly, Plaintiff's claims with regard to excessive force
and deliberate indifference to serious medical needs on the date
of the incident, having both accrued on May 19, 1998 and not
having been plead until March 21, 2003, are rightfully barred by
the applicable one-year statute of limitations. Moreover,
Plaintiff's claim that Defendants were continuously and deliberately
indifferent to his serious medical needs throughout the years
after the May 19, 1998 incident is barred by the one-year
statute; in order for this claim to have been timely filed,
Plaintiff would have had to raise it before January 16, 2002,
which he did not. Prior to recommending this action's dismissal
on this basis, however, this Court must analyze whether equitable
tolling is appropriate in this case. See Stoll v. Runyon,
165 F.3d 1238, 1242 (9th Cir. 1999) (noting circumstances in which
equitable tolling may be appropriately applied).
2. Equitable Tolling
As with statutes of limitation, federal courts apply the forum
state's law with regard to equitable tolling, when not
inconsistent with federal law. See Fink v. Shedler,
192 F.3d 911, 914 (9th Cir. 1999); Bacon v. City of Los Angeles,
843 F.2d 372, 374 (9th Cir. 1988). The purpose of the equitable
tolling doctrine "is to soften the harsh impact of technical
rules which might otherwise prevent a good faith litigant from
having a day in court." Daviton v. Columbia/HCA Healthcare
Corp., 241 F.3d 1131, 1137 (9th Cir. 2001) (en banc) (quoting
Addison v. State, 21 Cal.3d 313, 319 (Cal. 1978) (internal
quotation marks omitted)). Thus, California courts apply
equitable tolling "to prevent the unjust technical forfeiture of
causes of action, where the defendant would suffer no prejudice."
Lantzy v. Centex Homes, 31 Cal.4th 363, 370 (Cal. 2003).
California's prisoner tolling provision provides: [i]f a person entitled to bring an action, . . . is,
at the time the cause of action accrued, imprisoned
on a criminal charge, or in execution under the
sentence of a criminal court for a term less than for
life, the time of that disability is not a part of
the time limited for the commencement of the action,
not to exceed two years.
Cal. Civ. Proc. § 352.1 (West Supp. 2004). This tolling provision
is applied in addition to the statute of limitations applicable
to California tort claims. Id. Consequently, should equitable
tolling be applied in this case, Plaintiff's excessive force
claim, as well as his claim of deliberate indifference to serious
medical needs based on Defendants' failure to provide him medical
treatment immediately following the correctional officer
Defendants' use of force, would still be barred, whereas the
remaining deliberate indifference claim would not.*fn6
To determine whether equitable tolling applies under California
law, however, three conditions must be met: "(1) defendant must
have had timely notice of the claim; (2) defendant must not be
prejudiced by being required to defend the otherwise barred
claim; and (3) plaintiff's conduct must have been reasonable and
in good faith." Bacon, 843 F.2d at 374; see also Addison,
21 Cal.3d at 319; Electronic Equip. Express, Inc. v. Donald H.
Seiler & Co., 122 Cal. App. 3d 834, 847 n. 3 (Cal.Ct.App. 1981)
(citing cases applying tolling doctrine).
Addressing each of these conditions in support of their
argument against the application of equitable tolling, Defendants
first contend that they were not afforded timely notice because
Plaintiff filed his first inmate appeal on April 5, 2000, nearly
two years after the day on which Plaintiff first sustained his
physical injuries.*fn7 Defs' Amended Mem. at 5. Second,
Defendants state that Plaintiff's "long and serial delays" in
prosecuting his civil rights claims are prejudicial to
Defendants, causing them to defend against claims arising from
events that occurred nearly seven years ago. Defs' Amended Mem.
at 5. Third, Defendants argue that Plaintiff has neither offered
an explanation for his lengthy delay, nor presented evidence to
suggest that his conduct was reasonable or in good faith. Id.
Indeed, Defendants reiterate that Plaintiff has not communicated
at all with both Defendants and the Court regarding his conduct.
As a result, Defendants insist that Plaintiff is not entitled to
the benefit of equitable tolling on any of his civil rights
Defendants arguments in this regard are well taken. For
example, Plaintiff's near two-year delay between the date on
which he allegedly sustained physical injuries and the date on
which he first filed an inmate appeal regarding those injuries is
troubling, especially given the California Code of Regulations mandate that
such inmate appeals be filed within fifteen working days of the
incident at issue. Presumably, had Plaintiff filed his first
inmate appeal within the fifteen working days after the incident
as required, he very likely would have completed the inmate
appeal process well in advance of January 16, 2001. Under this
circumstance, Defendants would have been afforded ample notice of
all civil rights claims asserted by Plaintiff. On the record,
however, Defendants were made aware of Plaintiff's final claim
only after Plaintiff belatedly filed his first inmate appeal two
years after the incident giving rise to the claim. On these
facts, Defendants cannot be said to have had timely notice.
Moreover, although Defendants fail to present specific instances
of prejudice, and instead merely infer its existence due to
Plaintiff's lengthy failure to prosecute, such a claim of
prejudice is not misplaced under the circumstances.*fn8
Finally, Plaintiff's failure to offer an explanation or to
present evidence to suggest that his actions were reasonable or
taken in good faith strongly militates against this Court's
application of equitable tolling. Specifically, Plaintiff has not
attempted to excuse or explain his lengthy delay in filing his
prison appeal, his lack of diligence in prosecuting the instant action, or his failure to respond to
Defendants' motions. Indeed, Plaintiff has not attempted to
explain his conduct or argue his case at all. Compare Azer,
306 F.3d at 938 (determining that plaintiffs satisfied the
reasonable and good faith conduct requirement by "diligently
pursu[ing] both administrative and state court remedies" and
"promptly instituting actions to preserve its rights") and
Jones v. Blanas, 393 F.3d 918, 927-30 (9th Cir. 2004) (applying
equitable tolling to a civil detainee who acted in good faith to
pursue his claims despite having his access to legal library and
legal materials significantly curtailed).
Based on the foregoing, this Court determines that the
applicable statute of limitations bars all civil rights claims
asserted by Plaintiff. Moreover, in light of its analysis with
regard to equitable tolling, this Court finds that the facts and
circumstances of this case do not support its application here.
Consequently, as required under Federal Rule 12 (c), Defendants
have clearly established that on the pleadings, Plaintiff "can
prove no set of facts in support of his claim[s] which would
entitle him to relief." Enron Oil Trading Transp. Co.,
132 F.3d at 529. As such, this Court recommends that Defendants' Motion
for Judgment on the Pleadings be GRANTED.
B. Defendants' Motion to Dismiss Complaint
Defendants further argue that Plaintiff's complaint must be
dismissed for failure to prosecute diligently his civil rights
claims. Defs' Amended Mem. at 5-9. As noted above, Defendants
underline that since Plaintiff instituted this action, he has
neither propounded discovery nor complied with any of the court's requirements to prosecute his case. Id. at 3, 8. Indeed,
Defendants contend that Plaintiff has done nothing other than
request court-appointed counsel, a request that was denied as
long ago as February 18, 2004. Id. at 3. Again, Plaintiff has
not responded to Defendants' Motion.
1. Failure To Prosecute Diligently
In addition to the court's authority to order dismissal under
the Federal and Local Rules, the Ninth Circuit requires a
district court to address five specific factors to determine
whether to dismiss a case for lack of prosecution:
(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;
(4) the public policy favoring the disposition of
cases on their merits; and (5) the availability of
less drastic sanctions.
In re Eisen, 31 F.3d 1447
, 1451 (9th Cir. 1994). This
multi-factor test, however, is not "a mechanical means of
determining what  sanction is just." Valley Eng'rs Inc. v.
Elec. Eng'g Co., 158 F.3d 1051
, 1057 (9th Cir. 1998). Instead,
the list of factors merely provides an outline "for a district
judge to think about what to do, not a series of conditions
precedent before the judge can do anything." Id. Moreover,
"[a]lthough beneficial to the reviewing court, a district court
is not required to make specific findings on each of [the listed]
factors." Eisen, 31 F.3d at 1451. Nevertheless, the Court will
evaluate each of the enumerated factors in turn.
First, the Ninth Circuit has held that "the public's interest
in the expeditious resolution of litigation always favors
dismissal." Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999). Notwithstanding this ruling, a district court must find "unreasonable delay" prior to dismissing a particular
case for lack of prosecution. See Eisen, 31 F.3d at 1451
(affirming the district court's determination that a bankruptcy
claimant's four-year delay in taking any action to prosecute was
inherently unreasonable). In the instant case, the last action
taken by Plaintiff to prosecute this civil rights claims occurred
on January 16, 2004, when he requested court-appointed counsel.
Doc. No. 12. Since that time, the court has issued multiple
scheduling orders regulating discovery and other pretrial
proceedings, on which Plaintiff has taken no action. Doc. Nos.
14, 23, and 29. Moreover, after the Court granted Defendants' Ex
Parte Application to file dispositive motions beyond the hearing
deadline [Doc. No. 35], Plaintiff failed to respond in any way to
Defendants' Motion. Indeed, the only action taken by Plaintiff
over the course of the past twenty-two months includes a series
of prohibited, ex parte communications with the court, the
majority of which were not accepted for filing. Doc. Nos. 20, 34,
38, 40, 42, and 43. Of those communications that were accepted by
the court, each attempted to allege additional civil rights
violations unrelated to the underlying action, and therefore did
not serve to advance the civil rights claims at issue. Doc. Nos.
39 and 44. As such, the Court finds that Plaintiff's near
two-year lapse in prosecuting his civil rights claims, and his
complete failure to respond to Defendants' dispositive motions
constitutes unreasonable delay. As such, this factor strongly
militates in favor of dismissal.
Second, the court's need to manage its docket is often reviewed
in conjunction with the public's interest in the expeditious resolution of litigation and the determination of
unreasonable delay. See Eisen, 31 F.3d at 1452. Moreover,
reviewing courts acknowledge that the district court occupies a
"superior position to evaluate the effects of delay" on its own
docket. Yourish, 191 F.3d at 991. Because Plaintiff initially
filed his complaint in early 2003, coupled with the fact that
this case has languished on the court's docket without activity
from Plaintiff for nearly two years, this factor equally favors
When considering the third factor-risk of prejudice to
Defendants-the Ninth Circuit instructs that "the failure to
prosecute diligently is sufficient by itself to justify a
dismissal, even in the absence of a showing of actual prejudice
to the defendant from the failure. . . . The law presumes injury
from unreasonable delay." Eisen, 31 F.3d at 1452; Morris,
942 F.2d at 651. Notwithstanding this instruction, the Ninth Circuit
further explains that this presumption of prejudice is
where a plaintiff has come forth with an excuse for
his delay that is anything but frivolous, the burden
of production shifts to the defendant to show at
least some actual prejudice. If he does so, the
plaintiff must then persuade the court that such
claims of prejudice are either illusory or relatively
insignificant when compared to the force of his
excuse. At that point, the court must exercise its
discretion by weighing the relevant factors time,
excuse, and prejudice.
Nealey v. Transportacion Maritima Mexicana, S.A.,
662 F.2d 1275
, 1281 (9th Cir. 1980). According to the Nealey court,
prejudice, if established, is usually exhibited in two forms:
loss of evidence and loss of memory by a witness.*fn9
Id. In this case,
Plaintiff has offered neither excuse nor explanation for the
delay in his prosecution of this case. Indeed, the record
reflects that Plaintiff has failed to communicate with the court
in any meaningful way with regard to those claims underlying this
civil rights action for nearly two years. Having thus failed to
present evidence of any kind to explain his lack of prosecution,
Plaintiff has not met his burden of production necessary to force
Defendants to show actual prejudice. Consequently, like the
preceding factors, this factor equally works in favor of
With regard to the fourth factor, this Court concedes that
"public policy strongly favors disposition of actions on the
merits." Yourish, 191 F.3d. at 992. Furthermore, where, as
here, a case implicates important public policy
concerns,*fn10 "the court should weigh the public interest in the case and the preference
for disposing of cases on their merits prior to granting
dismissal." Dahl v. City of Huntington Beach, 84 F.3d 363, 366
(9th Cir. 1996) (determining that the public had an interest in
deciding a police brutality case on the merits). Nevertheless,
while "the public policy favoring disposition of cases on their
merits weighs against default judgment, that single factor is not
enough to preclude imposition of this sanction when the other
four factors weigh in its favor." Rio Props., Inc. v. Rio Int'l
Interlink, 284 F.3d 1007, 1002 (9th Cir. 2002). As such, given
this Court's analysis of the other factors regarding dismissal
for lack of prosecution, this Court determines that this public
policy concern is outweighed by the other factors supporting
dismissal of this case.
Finally, the Ninth Circuit has "never held that explicit
discussion of [less drastic sanction] alternatives is necessary
for an order of dismissal to be upheld." Malone v. United States
Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987), cert. denied,
488 U.S. 819 (1988). In this case, however, both the record and
the authorities militate in favor of dismissal as sanction. For
example, monetary sanctions would be inappropriate because they
would not remedy Plaintiff's delay, and ineffective because
Plaintiff, a pro se prisoner proceeding in forma pauperis,
arguably lacks the funds to comply with an order for sanctions.
Moreover, Plaintiff could have remedied the current state of this
litigation by simply presenting to the court some form of
explanation or excuse for his protracted failure to prosecute his
case. Having failed to offer any such explanation, coupled with the fact that
Plaintiff has had notice of Defendants' Motion to Dismiss for
nearly seven months without opposing said motion or offering some
kind of response thereto,*fn11 this final factor also favors
dismissal of this case.
In a final point, although courts must construe pleadings
liberally in favor of pro se litigants in such prisoner civil
rights cases, these same pro se litigants "are bound by the
rules of procedure." Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.
1995). In other words, every "plaintiff in federal court has a
responsibility to prosecute his action diligently. Failure to do
so may permit the district court to dismiss." Collins v.
Pitchess, 641 F.2d 740, 742 (9th Cir. 1981) (explaining that
"[a]lthough prisoner status, and the infirmities it engenders,
may not provide the basis to dismiss a complaint, that is not to
say a prisoner's complaint is totally insulated from dismissal
for want of prosecution."); see also CivLR 7.1.f.3.c ("If an
opposing party fails to file [an opposition] in the manner
required by Civil Local Rule 7.1.e.2, that failure may constitute
a consent to the granting of a motion or other request for ruling
by the court."). At bottom, therefore, Plaintiff's significant
delay in taking any action to prosecute his civil rights claims,
as well as Plaintiff's failure either to address or oppose
Defendants' motions without explanation or excuse supports this
Court's recommendation that Defendants' Motion to Dismiss Complaint for failure to prosecute
diligently this action be GRANTED.
Because on the pleadings Plaintiff can prove no set of facts in
support of his claims which would entitle him to relief, this
Court RECOMMENDS that Defendants' Motion for Judgment on the
Pleadings be GRANTED. Moreover, because Plaintiff has failed to
prosecute diligently his civil rights claims for a period well in
excess of six months, this Court also RECOMMENDS that
Defendants' Motion to Dismiss Complaint be GRANTED.
This Report and Recommendation of the undersigned Magistrate
Judge is submitted to the United States District Judge assigned
to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1).
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that
the District Court issue an Order: (1) approving and adopting
this Report and Recommendation and (2) directing that Judgment be
entered granting Defendants' Motion for Judgment on the Pleadings
and granting Defendants' Motion to Dismiss Complaint. Doc. Nos.
IT IS HEREBY ORDERED that any written objections to this
Report must be filed with the Court and served on all parties no
later than November 18, 2005. The document should be captioned
"Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
December 16, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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