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Shannon Lewis Avery, Sr v. Cdcr Director

January 17, 2013

SHANNON LEWIS AVERY, SR.,
PLAINTIFF,
v.
CDCR DIRECTOR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE BE DENIED (Doc. 104.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS

I. BACKGROUND

Shannon Lewis Avery, Sr. ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 16, 2007 in the Northern District of California, and the case was transferred to the Eastern District of California on August 13, 2007. (Docs. 1, 2.) This case now proceeds on Plaintiff's Second Amended Complaint filed on July 20, 2010, against C/O J. Amaya for retaliation under the First Amendment; against defendant C/O G. Gonzales for inadequate medical care and for failure to protect Plaintiff, in violation of the Eighth Amendment; and on Plaintiff's related state tort claims. (Doc. 69.)

On August 2, 2012, Defendants filed a motion to dismiss this action, with prejudice, for Plaintiff's failure to prosecute. (Doc. 104.) On October 12, 2012, Plaintiff filed an opposition to the motion. (Doc. 111.) On October 29, 2012, Defendants filed a reply to the opposition. (Doc. 112.)

II. MOTION TO DISMISS FOR FAILURE TO PROSECUTE

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn1 See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992); Pagtalunan, 291 F.3d at 642--43 (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition), cert. denied, 538 U.S. 909, 123 S.Ct. 1481 (2003). This Court's Local Rules are in accord. See Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. Specifically, the court must 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 alternatives. Pagtalunan, 291 F.3d at 642 (citing Ferdik, 963 F.2d at 1260-61.

B. Defendants' Motion

Defendants move to dismiss this case based on Plaintiff's complete lack of participation since Defendants' appearance in this matter and lack of responsiveness to any of Defendants' discovery efforts and motions to compel, as shown by the evidence.

On February 6, 2012, Defendants served a request for production of documents upon Plaintiff, and Plaintiff's responses were due 45 days later, by March 26, 2012. (Declaration of E. Wada, Doc. 104-1 ¶¶3, 4.) Plaintiff has not responded to the request or to Defendants' efforts to meet and confer with Plaintiff. (Id. ¶4.)

On April 30, 2012, Defendants served a set of requests for admission and interrogatories upon Plaintiff, and Plaintiff's responses were due on June 14, 2012. (Id. ¶¶5-7.) Plaintiff has not served any responses or objections, negotiated an extension of time, or responded to Defendants' efforts to meet and confer with Plaintiff. (Id. ¶7.)

On May 3, 2012, Defendants served upon Plaintiff a notice of Plaintiff's deposition scheduled for June 5, 2012. (Id. ¶8.) Plaintiff failed to appear, and he never contacted Defendants' counsel to reschedule the deposition or responded to Defendants' meet and confer communications. (Id. ¶¶9-11.)

Defendants also filed two subsequent motions to compel further discovery, which Plaintiff failed to ...


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