United States District Court, E.D. California
BRYAN E. RANSOM, Plaintiff,
AGUIRRE, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
ACTION BE DISMISSED FOR PLAINTIFF'S FAILURE TO COMPLY
WITH SCHEDULING ORDER (ECF No. 133.) OBJECTIONS, IF ANY, DUE
IN FOURTEEN DAYS
S. Austin UNITED STATES MAGISTRATE JUDGE
E. Ransom (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action pursuant to
42 U.S.C. § 1983. This case was initiated by a complaint
filed in Kings County Superior Court on June 26, 2012, case
12 C0200. On August 16, 2012, the case was removed to federal
court pursuant to 28 U.S.C. § 1441(b) by defendants
Aguirre, Alanis, Messick, Clark, Cortez, Kernan, Mariscal,
Messick, Moon, Perez, Singh, Ulit, Vallejo, Vogel, Wang, and
Wooden. (ECF No. 1.) This case now proceeds with the First
Amended Complaint filed by Plaintiff on March 6, 2013,
against defendants Aguirre, Alanis, Clark, Cortez, Kernan,
Mariscal, Messick, Moon, Perez, Singh, Ulit, Vallejo, Vogel,
Wang, and Wooden (collectively, “Defendants”).
(ECF No. 12.)
August 9, 2016, the court issued a Discovery and Scheduling
Order (“Order”) opening discovery and setting out
deadlines. (ECF No. 133.) The Order required the parties to
provide initial disclosures by September 22, 2016.
(Id.) Plaintiff was directed to do the following by
September 22, 2016:
Plaintiff shall provide Defendants with the name and, if
known, the location or other identifying information (such as
inmate number, job classification or assignment) of each
individual likely to have information about the events
described in his complaint or his claims of injury or damage.
In addition, Plaintiff shall describe, generally, the
information each individual so identified is believed to
Plaintiff shall also provide copies of, or a list describing
(by category and location), all documents or other tangible
things in his possession, custody or control1 which he may
use to support the allegation(s) in his complaint, or his
claims or injury or damage.
On September 16, 2016, Defendants filed a motion for
terminating sanctions. (ECF No. 135.) Plaintiff Bryan E.
Ransom (“Plaintiff”) was required to file an
opposition or a statement of non-opposition to the motion
within twenty-one days, but has not done so. Local Rule
(Discovery and Scheduling Order, ECF No. 133 at 1-2.)
deadline for providing initial disclosures expired on
September 22, 2016. On October 10, 2016 and December 6, 2016,
Defendants filed notice to the court that Plaintiff had not
provided initial disclosures pursuant to the Order. (ECF Nos.
determining whether to dismiss this action for failure to
comply with the directives set forth in its 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) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal, '” id. (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)), and here, the action has been pending since
June 26, 2012. Plaintiffs failure to respond to the
court's order may reflect Plaintiffs disinterest in
prosecuting this case. In such an instance, the court cannot
continue to expend its scarce resources assisting a litigant
who will not fully participate in discovery. Thus, both the
first and second factors weigh in favor of dismissal.
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Id (citing Yourish at
991). However, “delay inherently increases the risk
that witnesses' memories will fade and evidence will
become stale, ” id, and it is Plaintiffs
failure to participate in discovery that is causing delay.
Therefore, the third factor weighs in favor of dismissal.
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the Court which
would constitute a satisfactory lesser sanction while
protecting the Court from further unnecessary expenditure of
its scarce resources. Given that Plaintiff is a prisoner
proceeding pro se, the Court finds monetary sanctions of
little use, and given the early stage of these proceedings,
the preclusion of evidence or witnesses is not available.
However, inasmuch as the dismissal being considered in this
case is without prejudice, the court is stopping short of
issuing the harshest possible sanction of dismissal with
because public policy favors disposition on the merits, this
factor will always ...