United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR
FAILURE TO PROSECUTE AND OBEY A COURT ORDER (DOCS. 50, 51,
54, 59) TWENTY-ONE (21) DAY DEADLINE.
K. OBERTO. UNITED STATES MAGISTRATE JUDGE.
Timothy Watts, is a state prisoner proceeding pro se
and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. This action was dismissed
and judgment entered in Defendants' favor on September 9,
2015, when Defendants' motion for summary judgment based
on Plaintiff's failure to exhaust available
administrative remedies prior to filing suit was granted.
(Docs. 44, 45.) Plaintiff filed a timely appeal to the Ninth
Circuit. (Doc. 46.) In light of the subsequent intervening
authority in Reyes v. Smith, 810 F.3d 654 (9th Cir.
2016), the Ninth Circuit remanded this action for
determination whether Plaintiff properly exhausted
administrative remedies on his deliberate indifference claim
regarding medical appliances. (Doc. 49, pp. 2-3.)
Reyes issued subsequent to the closure of this
action and was neither addressed by the parties in the
dispositive motion, nor considered in the ruling thereon.
on December 2, 2016, an order issued granting Defendants
opportunity to file a motion for summary judgment on
exhaustion, restricted to Plaintiff's deliberate
indifference claim regarding medical appliances, or a
statement that, in light of Reyes, they did not
intend to file a motion on exhaustion issues. (Doc. 50.) If
Defendants chose to file a new motion for summary judgment,
Plaintiff was directed to file an opposition within
twenty-one (21) days of the date that Defendants serve their
motion. (Id.) That same date, an order issued
provided notice and warning of the requirements for his
opposition in compliance with Woods v. Carey, 684
F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland,
154 F.3d 952, 960-61 (9th Cir. 1998); Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 51.)
filed their motion for summary judgment on exhaustion issues
on December 22, 2016. (Doc. 54.) More than twenty-one (21)
days have lapsed without Plaintiff having filed an opposition
or a statement of non-opposition to their motion. Thus, on
April 6, 2017, an order issued for Plaintiff to show cause
within twenty-one days (21) why this action should not be
dismissed based on his failure to comply with the Court's
December 2, 2016 orders and for failure to prosecute this
action. (Doc. 59.) More than a month has lapsed and Plaintiff
has not complied with the December 2, 2016 orders, or with
the April 6, 2017 order to show cause.
Rule 110 provides that “failure of counsel or of a
party to comply with these Rules or with any order of the
Court may be grounds for the imposition by the Court of any
and all sanctions . . . within the inherent power of the
Court.” District courts have the inherent power to
control their dockets and “in the exercise of that
power, they may impose sanctions including, where appropriate
. . . dismissal of a case.” Thompson v. Housing
Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may
dismiss an action, with prejudice, based on a party's
failure to prosecute an action, failure to obey a court
order, or failure to comply with local rules. See, e.g.
Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
(dismissal for noncompliance with local rule); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
(dismissal for failure to comply with an order requiring
amendment of complaint); Carey v. King, 856 F.2d
1439, 1440-41 (9th Cir. 1988) (dismissal for failure to
comply with local rule requiring pro se plaintiffs
to keep court apprised of address); Malone v. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
for failure to comply with court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for failure to lack of prosecution and failure to comply with
determining whether to dismiss an action for lack of
prosecution, failure to obey a court order, or failure to
comply with local rules, the Court must consider several
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 the defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
alternatives. Thompson, 782 F.2d at 831;
Henderson, 779 F.2d at 1423-24; Malone, 833
F.2d at 130; Ferdik, 963 F.2d at 1260-61;
Ghazali, 46 F.3d at 53.
the Court finds that the public's interest in
expeditiously resolving this litigation and the Court's
interest in managing the docket weigh in favor of dismissal.
The third factor, risk of prejudice to Defendants, also
weighs in favor of dismissal, since a presumption of injury
arises from the occurrence of unreasonable delay in
prosecuting an action. Anderson v. Air West, 542
F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public
policy favoring disposition of cases on their merits -- is
greatly outweighed by the factors in favor of dismissal
discussed herein. Finally, a Court's warning to a party
that his failure to obey the court's order will result in
dismissal satisfies the “consideration of
alternatives” requirement. Ferdik v. Bonzelet,
963 F.2d at 1262; Malone, 833 at 132-33;
Henderson, 779 F.2d at 1424. The Court's order
requiring Plaintiff to file an opposition or statement of
non-opposition to Defendants' motion for summary judgment
expressly stated: “If Plaintiff fails to file an
opposition or a statement of non-opposition to the motion,
this action may be dismissed, with prejudice, for failure to
prosecute.” (Doc. 51, p. 1 (emphasis in
original).) The orders to show cause which issued on February
1, 2017, and April 6, 2017, also cautioned that this action
may be dismissed for his failure to comply with the
Court's orders to file an opposition or a statement of
non-opposition and for his failure to prosecute this action.
(Docs. 55, 59.) Thus, Plaintiff had more than adequate
warning that dismissal may result from his noncompliance with
the Court's orders.
the Court HEREBY RECOMMENDS that this action be dismissed
with prejudice based on Plaintiff's failure to obey the
Court's orders of December 2, 2016, (Docs. 50, 51) and
April 6, 2017 (Doc. 59).
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
twenty-one (21) days after being served with these Findings
and Recommendations, the parties may file written objections
with the Court. The document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Failure to file objections within the
specified time may result in the waiver of rights on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).
 It is noted that, on April 26, 2017,
Plaintiff filed a motion to appoint counsel. (Doc. 60.)
However, more than twenty-one days have now lapsed from the
order denying this request which ...