IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 4, 2008
JIM CHATMAN COOPER, JR., PLAINTIFF,
LASSEN COUNTY SHERIFF'S DEPARTMENT, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state parolee proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Lassen County Sheriff's Department and defendant Deputy Shaun Gualco's motion to dismiss, filed on June 23, 2008, to which plaintiff filed no opposition. On July 24, 2008, Kristina Hall represented defendants at the scheduled hearing on the motion while plaintiff pro se made no appearance.
Defendants' motion to dismiss is predicated on plaintiff's failure to provide discovery responses, as he had been directed to do by this court. Motion to Dismiss (MTD), pp. 1-5; Kristina Hall Declaration. When defendants had earlier filed a motion to compel, plaintiff failed to oppose it. As defendants contend, in an Order, filed on May 20, 2008, the undersigned ordered plaintiff to respond to defendants' discovery requests within twenty days. In the May 20, 2008, Order, granting defendants' unopposed motion to compel discovery, the court observed that although plaintiff had failed to file any opposition to defendants' previous motion to strike, the undersigned nevertheless had allowed plaintiff to file an amended complaint (referencing an Order, filed on April 22, 2008). Stating that L.R. 78-230(m) provides, in part, "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . .," plaintiff was found as to the unopposed motion to compel to have waived opposition -- the court noting, with regard to the repeated failure of plaintiff to oppose defendants' motions that:
[I]t begins to appear as though plaintiff is engaging in a pattern of failing to prosecute this action. In any event, it is not a function of the court to construct an argument on plaintiff's behalf where he has wholly abdicated his responsibility to respond to defendants' present motion.
Order, filed on May 20, 2008, p. 3.
Defendants contend in their pending dismissal motion that plaintiff subsequently failed to comply with the May 20, 2008, order either in serving the discovery responses or in filing in this court proof of service of same. MTD, p. 2; Kristina Dec. ¶ 3. Defendants argue that plaintiff's inaction is a violation of the court's order and assert that "[c]onsistent with the Court's observation, Plaintiff continues his pattern of intransigence in failing to prosecute the action that he filed." MTD, p. 2.
In the Order, filed on May 20, 2008, the court, noting that plaintiff, a parolee, had been released from custody, ruled that this case was no longer governed by the provisions of L.R. 78-23(m), but that hence forward the other provisions of L.R. 78-230 would apply. As to the pending motion to dismiss, therefore, under L.R. 78-230(c), plaintiff was required to file written opposition within fourteen (14) days of the filing of the noticed motion or to file a statement of non-opposition. Pursuant to E. D. Local Rule 78-230(j), failure to appear at the hearing is deemed a statement of non-opposition to the granting of the motion and may result in sanctions. Local Rule 11-110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Finally, Local Rule 83-183, governing persons appearing in propria persona, provides that persons representing themselves are bound by the Federal Rules and the Local Rules and failure to comply therewith may be ground for dismissal, judgment by default, or other appropriate sanction.
Although failure to provide timely written opposition to the motion to dismiss signified that plaintiff was no longer entitled to be heard at oral argument, the court nevertheless did not vacate the properly noticed motion in order to provide plaintiff pro se a final opportunity to explain his evident neglect of his own action. As noted, however, plaintiff once again failed to file an opposition to a pending motion; neither did he file a statement of non-opposition or make an appearance at the hearing. In their motion, defendants seek dismissal as a sanction for plaintiff's failure to comply with the court's order and with his discovery obligations. MTD, p. 4.
"Failure to follow a district court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).*fn1 The court should consider: (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 disposition of cases on their merits, and (5) the availability of less drastic sanctions. Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) .
In determining to recommend that this action be dismissed, the court has considered the five factors set forth in Ghazali, 46 F.3d at 53. Plaintiff's failure to comply with the Local Rules has impeded the expeditious resolution of the instant litigation and has burdened the court's docket, consuming scarce judicial resources in addressing litigation which plaintiff demonstrates no intention to pursue. Although public policy favors disposition of cases on their merits, plaintiff's repeated failure to oppose defendants' motions has precluded the court from doing so. In addition, defendants are prejudiced by the inability to reply to opposition. Moreover, the court has repeatedly advised plaintiff of the requirements under the Local Rules and even gone so far as to permit plaintiff to file an amended complaint absent either a motion for leave to amend and any opposition to defendants' motion to strike the amended complaint. See Order, filed on April 22, 2008. Furthermore, a district court may dismiss an action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). Plaintiff's failure to prosecute his action has been in evidence for an extended period.*fn2
Accordingly, IT IS RECOMMENDED that defendants' unopposed motion to dismiss this action, filed on 6/23/08 (# 35), be granted; this court further recommends dismissal of this action with prejudice, pursuant to Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).