The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a Yolo County inmate,*fn1 seeks relief pursuant to 42 U.S.C. § 1983.
Pending before the court is defendants' motion to dismiss this case for lack of prosecution pursuant to Fed. R. Civ. P. 41(b). In apparent response, plaintiff filed a "notice of motion of 'objections' to recommendations for a dismissal," which the court will construe as his opposition to the pending motion.*fn2 On April 12, 2010, plaintiff filed a putative appeal of an alleged March 21, 2010 judgment in this case. Plaintiff appears to have made a habit of filing premature notices of appeal. On December 12, 2009, the undersigned granted defendants' request that plaintiff's inapposite notice of appeal (filed on October 27, 2009) of a judgment that had not been rendered be stricken as premature. In any event, no order of any kind, much less any judgment, issued on or around March 21, 2010, and this appeal, on the face of it, is also premature and inapposite. Motion to Dismiss
Defendants bring a motion to dismiss this action with prejudice pursuant to Fed. Civ. P. R. 41(b). See Notice of Motion, p. 1. Defendants argue that plaintiff has failed completely to litigate this case. Motion to Dismiss Memorandum of Points and Authorities (hereafter, MTD), p. 1. Defendants aver that despite defendants' motion to compel (docket # 48) and two court orders, one directing him to show cause why the motion to compel should not be granted (order, filed on October 16, 2009, docket # 50) and another directing him to comply with discovery (order, filed on December 2, 2009, docket # 53), plaintiff has not responded either to the defendants' interrogatories or requests for production. Id. & Declaration of Susan De Nardo, ¶¶ 5-6. Defendants' counsel declares that the discovery sought is information that would allegedly support plaintiff's constitutional claims so the litigation can proceed. Id. & DeNardo Dec., ¶ 4.
Defendants contend that [at the time of the filing of the instant motion] the operative fourth amended complaint had been filed more than two years ago, on November 2, 2007 (docket # 25). MTD, p. 2. Defendants propounded their interrogatories and requests for production following the filing of an answer (on September 19, 2008, docket # 37) and issuance of the court's discovery (on October 28, 2009, docket # 42) and scheduling (on April 17, 2009, docket # 47) orders. Id. Plaintiff's responses, according to defendants, were due on July 23, 2009, but none were forthcoming, whereupon their motion to compel was filed on August 7, 2009, seeking sanctions (docket # 48). Id. Defendants correctly observe that plaintiff filed no opposition, thereby waiving objections, and on October 16, 2009, as noted, the court ordered plaintiff to show cause why the motion should not be granted (docket # 50). Id. Defendants further contend (id.) that plaintiff did not respond to the order, instead filing, on October 27, 2009, a notice of appeal from a judgment which had not been made (docket # 51) which the court has noted above was stricken as inapposite and premature. Defendants note, moreover, that in filing the putative appeal, plaintiff included a Yolo County Jail address as his residence in lieu of filing an appropriate notice of his change of address pursuant to the applicable Local Rule (now denominated 183(b)),*fn3 which constitutes a separate ground for dismissal based on a failure to prosecute (docket #'s 51-53). Id.
Defendants point to the court's seven-page order, filed on December 2, 2009, wherein plaintiff's failure to comply with the Local Rules and the court's orders, including the scheduling order (docket # 53). MTD, p. 2. Within the order, the court cautioned plaintiff that should he fail to comply "fully and strictly" with the order, "the court will recommend dismissal with prejudice of this case for a repeated failure to comply with the court's orders and the Local Rules," citing Fed. R. Civ. P. 41(b) and E.D. Local Rule 11-110 (now simply, Local Rule 110). See Order, filed on December 2, 2009, pp. 6, 7 (docket # 53). The undersigned gave plaintiff one more opportunity to go forward with his case, directing defendants to re-serve their discovery requests upon plaintiff at his latest address, the Yolo County Jail, within five days. MTD, p. 2, citing Order, at docket # 53. Defendants served (or re-served) the requests on December 9, 2009, which defendants note was a date in compliance with Fed. R. Civ. 6(d) (permitting three additional days under these circumstances). MTD at 2-3, footnote 2 & DeNardo Dec. ¶ 5, Exhibit (Ex.) A, copy of set one of defendants' request for production of documents; Ex. B, copy of set copy of set one of interrogatories, with proofs of service. Plaintiff was also ordered to answer, without objection, the defendants' discovery requests within fourteen days of service of the requests and to file proofs of service of having done so in that same time frame. Id., at 3, DeNardo Dec. ¶ 6, Order, at docket # 53, pp. 6-7. To the date of the pending motion, defendants' counsel avers, no responses had been received. Id. In addition, the court notes, plaintiff has failed to file the requisite proofs of service. Defendants seek dismissal with prejudice pursuant to Fed. R. Civ. P. 41(b), as noted earlier and also contend that terminating sanctions are also warranted under Fed. R. Civ. P. 37, as they had argued in their motion to compel. Id.
In his "objections," construed, as noted above, as his opposition to the pending motion, plaintiff does not respond directly. Rather, he inappropriately asks that a notice of default be entered against defendants. Opposition (Opp.), p. 1. He alleges that the defendants have illegally tampered with and obstructed his federal court correspondence. Id. He claims to be racially segregated and subjected to retaliation, to have been physically assaulted by agents of the defendants and deprived of medical care when he was injured by non-party agents. Id. at 2. Plaintiff claims to be in imminent peril and deprived of basic human needs, such as showers, exercise, shaving and cell sanitation supplies. Id. at 3. He alleges that he is also being deprived access to purchase writing materials and envelopes, that he is being deprived of food as well. Id. In short, plaintiff simply complains of a host of jail conditions rather than substantively addressing the pending motion. Plaintiff asks that the court intervene to investigate what he asserts is a criminal conspiracy to deprive him, inter alia, of his right of court access. Id. at 4. He does not explain how it is that he is able by his opposition to communicate with the court. Plaintiff claims that for the two preceding months he had been prevented from litigating this action and himself seeks sanctions in the amount of $80,000.00. Id. Plaintiff's allegations about being limited for the two months previous to the filing of his opposition do not clarify why he was unable to respond to defendants' discovery requests, motion to compel or the court's orders. Plaintiff asks for a further 30-day extension of time and requests that defendants be required to provide him legal assistance. Id. at 5. Plaintiff attaches several unauthenticated documents as exhibits, among which are what appear to be copies of memoranda from a Correctional Officer (C/O) Kolb. MTD, pp. 11-12. In a memo dated February 17, 2010, C/O Kolb indicates that an envelope marked legal mail by plaintiff lacked the required postage and was being returned to plaintiff because plaintiff did not have the funds in his account after having purchased unidentified commissary items but was not considered indigent by the standards of jail policy until March 9, 2010. MTD, p. 11. A March 1, 2010 memo, also apparently from Kolb, indicates that two envelopes marked legal mail were being returned to plaintiff for the same reasons. MTD, p. 12. Plaintiff, within his motion, does not identify any of this mail as having been plaintiff's discovery responses at issue herein; nor does he explain why he failed, at a minimum, to include said responses with his opposition, or at least serve them even so very belatedly upon defendants, particularly given that defendants had attached their discovery requests to the pending motion. Plaintiff does not dispute that he was re-served with the discovery requests on or around December 9, 2010, and makes no specific representation that he did not receive the reserved discovery requests. He does not offer any evidence to show that legal mail he attempted to mail out during the period from December 23, 2010 or the following week was returned to him. Further, plaintiff offers no explanation as to why, once he would either have the funds or be deemed indigent according to the foregoing memos, by March 9, 2010, why he either did not mail (or, if previously attempted but returned, re-mail) his responses. Plaintiff does not particularly help himself by including a copy of a Yolo County Sheriff's Department inmate mail handling record slip, dated October 9, 2007 (more than three years ago at this point), showing that mail from Playboy was returned for having "contained obscene or sexually explicit material." Id. at 13. Plaintiff's difficult-to-read copies (again unauthenticated) of "Yolo County Sheriff's Department Detention Rules Violation Report[s]," noting some loss of privileges, are dated, February 23, 2010, and March 3rd and 4th, 2010, which dates again are far beyond the deadline set for his one last opportunity to respond to the discovery requests to which the court had ordered him to respond. The apparent copies of his inmate grievances that he includes, at Opp., pp. 19-24, dated as initiated on January 6, 2010, February 4, 2010, and February 7, 2010, do not appear to be remotely relevant to the question of why he has repeatedly failed to respond to the defendants' discovery requests or the court's orders concerning them; instead, they appear to have been included in an effort to bolster his claims that he continues to be subjected to what he deems unconstitutional conditions of confinement. He complains therein of the allegedly defective condition of his razors, causing him injury; of his claimed restricted daily exercise; of being generally targeted for retaliatory abuse and discrimination on the basis of race; of having his food tampered with and his access to grooming tools denied. Opp., pp. 19-24.
None of plaintiff's disparate complaints in his opposition, although broad-sweeping, speak in any way to any reason whatever for plaintiff to have continued to fail to respond to defendants' discovery requests pursuant to court order in this case, as defendants note in their reply to plaintiff's opposition. Defendants' are correct that they may move for dismissal with prejudice of this action for plaintiff's failure to prosecute or to comply with the Federal Rules of Civil Procedure or an order of the court, pursuant to Fed. R. Civ. P. 41(b).*fn4 In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with the Federal Rules of Civil Procedure or the Local Rules, the court must consider several factors: "'(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.'" Malone v. U.S. Postal Serv., 833 F.2d 128, 130-131 (9th Cir. 1987), quoting Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir. 1986).
As to the first two factors, the public's interest in expeditious resolution of litigation and the court's need to manage its docket, these factors plainly weigh in favor of dismissal. The original complaint was filed on January 12, 2007, and the fourth amended complaint, filed since November 2, 2007,*fn5 has at this point been operative for nearly three years. Plaintiff has been given more than ample opportunity to respond to defendants' discovery requests and the court's orders regarding them and has continuously apparently refused to do so, failing once again to do so even as part of his opposition to the pending motion. This court's docket is far too burdened to continue to afford plaintiff further opportunities that he has shown no interest in taking to continue to pursue this action.
As to the third factor, the risk of prejudice to the defendants, defendants point out that they have not been able to litigate this case further due to plaintiff's lack of responsiveness to their discovery requests and his lack of compliance with the court's discovery and scheduling orders and the Local Rules regarding discovery, motions and changes of address. MTD, p. 4. Defendants contend that they have expended valuable resources in moving the court to compel plaintiff's compliance with the rules applicable to their discovery requests, all to no avail. Id. The court will find that defendants have made a showing that they have suffered prejudice by plaintiff's failure to respond to their discovery requests or their motion to compel or to court orders or with the Local Rules regarding the need to file appropriate notices of changes of address. Plaintiff's myriad complaints about the way he is allegedly being treated in jail simply do not obviate his duty to prosecute an action he brought.
Defendants acknowledge that the fourth factor does weigh in plaintiff's favor, the public policy favoring disposition of cases on their merits. MTD, p. 4. However, the court agrees with defendants that this single factor does not outweigh the factors favoring dismissal in this instance. Defendants note again that plaintiff failed to oppose the motion to compel or respond to the order to show cause. Id. at 4-5. Defendants also observe that in the related Case No. CIV-S-07-0022 GGH P, plaintiff also refused to respond to discovery or to the motion to compel therein. Thus, his apparent disengagement in this case appears to be a something of a pattern for plaintiff. In its order filed on Dec. 2, 2009, the court stated, in part:
At a minimum, plaintiff has been wholly delinquent in keeping the court apprised of his apparently frequent changes of address, has failed to comply with the Discovery Order, filed on October 28, 2008 (# 42), as well as the discovery deadline set forth in the Scheduling Order, filed on April 17, 2009 (#47) by not responding to defendants' discovery requests (and subsequent motion to compel), and therefore has failed in his responsibility to prosecute this case; the court could impose the terminating sanction of dismissal at this point. Although plaintiff can be deemed to have been properly served with the court's show cause order, filed on October 16, 2009 (# 50), requiring a response from plaintiff to defendants' pending motion to compel, which included a request for the sanction of dismissal, as this order was served on plaintiff at FSP when he was evidently not there (even though the order was not returned), the court will afford plaintiff one last opportunity to ...