The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR INVOLUNTARY DISMISSAL (Document 37)
Plaintiff Joe Danny Huerta ("Plaintiff"), a former pre-trial detainee proceeding pro se and in forma pauperis, filed this civil rights action on December 9, 2008. The action is proceeding on Plaintiff's Third Amended Complaint against Defendants Garcia, Chagoya and Heggen for use of excessive force in violation of the Eighth Amendment.
On June 13, 2012, the Court issued a Discovery and Scheduling Order which set February 13, 2013, as the discovery cut-off and April 22, 2013 as the dispositive motion deadline.
On December 6, 2012, Defendants filed a Motion to Compel responses to discovery served on Plaintiff. The motion was based on Plaintiff's complete failure to respond to written discovery. Plaintiff did not file an opposition.
The Court granted the motion on January 18, 2013, and ordered Plaintiff to serve responses no later than February 5, 2013. The Court also granted Defendants' request for sanctions in the amount of $203.40, payable to Defendants' counsel within thirty days of the date of service of the order.
On February 7, 2013, Defendants filed a Motion for Involuntary Dismissal. Alternatively, Defendants seek an order continuing the discovery cutoff, and compelling Plaintiff to submit to oral deposition and pay sanctions in the amount of $339.00.
Plaintiff did not file an opposition to the motion or otherwise contact the Court.
On March 15, 2013, Defendants' counsel filed a supplemental declaration indicating that Plaintiff had not yet completed his discovery obligations or paid the sanctions.
Rule 41(b) states, "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Under this rule, plaintiffs must prosecute their claims with "reasonable diligence" to avoid dismissal. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976). A dismissal pursuant to Rule 41(b) is considered an adjudication on the merits.
In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).
Defendants contend that this action should be dismissed because of Plaintiff's continued failure to respond to discovery and obey this Court's orders. For the reasons that follow, the Court agrees.
As explained above, the Court granted Defendants' Motion to Compel after Plaintiff wholly failed to respond to written discovery or oppose the motion. Plaintiff was ordered to produce responses by February 5, 2013. As of March 15, 2013, Plaintiff had not provided responses to the discovery, paid the sanctions or contacted ...