United States District Court, E.D. California
Michael Tenore, Plaintiff, Pro se, IONE, CA.
For Nathanael Goodgame, Stephen Tseng, Defendants: David C Goodwin, LEAD ATTORNEY, Office of the Attorney General, Sacramento, CA.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE.
Trial in this pro se prisoner civil rights action is set for April 2015. (ECF No. 78.) In April 2014, plaintiff was ordered to file a pretrial statement. (Id.) On July 24, 2014, after settlement talks failed, plaintiff requested a ninety-day extension of time to file his pretrial statement and motions for witness attendance. (ECF No. 86.) On September 24, 2014, following briefing on the location of potential inmate witnesses, plaintiff was granted an additional 60 days to file a pretrial statement, with the warning that " No further extensions of this deadline will be granted." (ECF No. 97.)
The sixty-day period has passed, and plaintiff has not filed a pretrial statement. Rather, he has filed an 85-page motion to appoint counsel, renewing his three previous requests for an attorney. (ECF No. 99.) He has also requested additional time to file a pretrial statement, stating that he will try to " put something together" within thirty days. (ECF No. 100.)
Defendants request dismissal of this action under Rules 16(f), 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure. (ECF No. 101.) Plaintiff has filed a reply, citing various difficulties of litigating from prison and asserting that " defendants, their lawyers, and MCSP" have conspired to impede him. (ECF No. 103 at 5.)
Plaintiff has been informed twice that failure to timely file a pretrial statement could result in the sanction of dismissal. (ECF Nos. 78, 97.) Under the circumstances, the court does not believe that plaintiff has shown good cause for a further extension of time or made a good-faith attempt to comply with the September 24, 2014 order. Nor has plaintiff shown the required exceptional circumstances for appointment of counsel.
" 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." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Factors (1) and (2) weigh in favor of dismissal. Id.; see also Malone v. U.S. Postal Service, 833 F.2d 128, 130-131 (9th Cir. 1987). Factor (5) weighs against dismissal.
As to factor (3), " [t]o prove prejudice, a defendant must establish that plaintiff's actions impaired defendant's ability to proceed to trial or threatened to interfere with the rightful decision of the case." Pagtalunan, 291 F.3d at 642, citing Malone, 833 F.2d at 131. Here, plaintiff's lack of diligence in preparing a pretrial statement -- despite being given ample time to do so and specific advice about how to contact inmate witnesses (see ECF No. 97) -- have impaired defendants' ability to proceed to trial in April 2015. Thus this factor weighs in favor of dismissal.
As to factor (4), " [w]arning a plaintiff that failure to take steps towards resolution of his action on the merits will result in dismissal satisfies the requirement the court consider the alternatives" to dismissal. Chatman v. Johnson, No. CIV S- 06-0578 MCE EFB P, 2008 WL 5412212 at *3 (E.D. Cal. Dec. 30, 2008) (dismissing pro se prisoner's action as sanction for failure to file pretrial statement) (findings and recommendations adopted by district court Feb. 17, 2009 and affirmed on appeal July 22, 2010), citing Buss v. Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984). As to other alternative sanctions, " imposing fines or attorney fees would be wholly impracticable because plaintiff proceeds pro se and in forma pauperis and plaintiff has disregarded all prior warnings regarding sanctions, including the sanction of dismissal. These alternatives, therefore, are infeasible." Id. For these reason, factor (4) also weighs in favor of dismissal. Moreover, " [t]he alternative of dismissal without prejudice is unsatisfactory because permitting plaintiff to file anew at his whim would only consume yet more of the court's time that could be devoted to other cases on its already overburdened docket." Id.
Accordingly, IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion to appoint counsel (ECF No. 99) is denied; and
2. Plaintiff's motion for an extension of time (ECF No. ...