United States District Court, E.D. California
ORDER DISMISSING PLAINTIFFS FLORES, CORMONA, BARRIGA,
AND LOPEZ FOR FAILURE TO PROSECUTE AND ADOPTING FINDINGS AND
RECOMMENDATIONS (DOC. NOS. 94, 95, 100, 119, AND
a civil rights action under 42 U.S.C. § 1983, involving
numerous plaintiffs and multiple defendants, which was filed
on September 2, 2011. (Doc. No. 3.) The matter was referred
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
January 20, 2016, plaintiffs’ counsel filed a motion to
withdraw as counsel of record for plaintiffs Barriga (#
E51696), and Lopez (# H82107). (Doc. No. 94.) Therein,
plaintiffs’ counsel asserted that the last known
address for these two plaintiffs was at the California
Correctional Institution in Tehachapi, but both have been
discharged and/or paroled. (Id. at 2-3.) As of the
filing of the motion to withdraw, plaintiffs’ counsel
had attempted for two years to communicate with plaintiffs
Barriga and Lopez, but had not received any form of response.
(Id. at 3.) On January 25, 2016, the court issued an
order to show cause within fourteen days why plaintiffs
Barriga and Lopez should not be dismissed from this action
due to abandonment of the litigation and failure to
prosecute. (Doc. No. 95.) Barriga and Lopez, however, never
responded to that order to show cause.
on April 4, 2016, plaintiffs’ counsel filed a motion to
dismiss plaintiffs Jimmy Flores, Reynaldo Cormona, and
Matthew Richards from this action, all with whom
plaintiffs’ counsel had also lost contact. (Doc. No.
118.) On April 5, 2016, the court issued another order to
show cause requiring that within twenty-one days Flores,
Cormona, and Richard show cause why they should not be
dismissed from this action for failure to prosecute. (Doc.
No. 119.) On April 8, 2016, plaintiffs’ counsel filed a
status report indicating that Richards had responded. (Doc.
No. 122.) Accordingly, the court discharged the order to show
cause as to Richards. (Doc. No. 124.) Plaintiffs Flores and
Cormona, however, never responded to the order to show cause.
April 29, 2016, the assigned magistrate judge issued findings
and recommendations recommending that Flores and Cormona be
dismissed as plaintiffs due to their failure to prosecute
this action. (Doc. No. 127.) Those findings and
recommendations were served on the parties and contained
notice that objections were to be filed within fourteen days.
(Id.) Despite lapse of more than the allowed time,
no objections have been filed. Local Rule 304(b), (d). In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, the court finds the findings and recommendations to be
supported by the record and by proper analysis.
stated in the findings and recommendation recommending that
plaintiffs Flores and Cormona be dismissed, the court has the
inherent power to control its docket and may, in the exercise
of that power, impose sanctions where appropriate, including
dismissal. Bautista v. Los Angeles County, 216 F.3d
837, 841 (9th Cir. 2000). In determining whether to dismiss
an action for failure to comply with a pretrial order, the
court must weigh “(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.” In re Phenylpropanolamine (PPA)
Products Liability Litigation, 460 F.3d 1217,
1226 (9th Cir. 2006) (quotations and citations omitted).
These factors guide a court in deciding what to do and are
not conditions that must be met in order for a court to take
Barriga and Lopez, like plaintiffs Flores and Cormona, are no
longer prosecuting this action despite being notified of the
requirement that they respond to the court’s order to
show cause. The court cannot afford to expend further
resources and delay the resolution of a case that is now over
five years old. It appears clear that plaintiffs Barriga and
Lopez, as well as Flores and Cormona, have abandoned this
litigation. Based on their failure to comply with or
otherwise respond to the orders of this court, there is no
viable alternative but to dismiss them from the action due to
their failure to prosecute their claims. Id. This
action can proceed no further without the cooperation of and
compliance with court orders by plaintiffs Barriga, Lopez,
Flores, and Cormona. This action has lingered long enough and
cannot remain unprosecuted by these plaintiffs while
remaining idle on the court's docket. Id.
the reasons set forth above:
findings and recommendations (Doc. No. 127), filed on April
29, 2016, are adopted in full;
Plaintiffs Jimmy Flores and Reynaldo Cormona are dismissed
from this action with prejudice due to their failure to
prosecute their claims; and
Separately from the findings and recommendations, the court
also dismisses with prejudice plaintiffs Barriga (# E51696)
and Lopez (# H82107) due to their failure to prosecute their
claims. In re PPA, 460 F.3d at 1226; Local Rule 110.
 Barriga and Lopez have only been
identified in this action by their surnames and inmate
numbers. Thus, despite their discharge/parole from custody,
for clarity, ...