United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a former state prisoner proceeding pro se with a civil
rights action pursuant to 42 U.S.C. § 1983.
order filed September 6, 2017, the undersigned granted
defendants' motion to compel and ordered plaintiff to
provide responses to their discovery requests within fourteen
days. ECF No. 114. Defendants had thirty days from service of
the order to file a motion for sanctions if plaintiff failed
to comply with the discovery order. Id. at 8.
Defendants have now filed a motion for terminating sanctions
(ECF No. 121), to which plaintiff has not
courts have the inherent power to control their dockets. In
the exercise of that power they may impose sanctions
including, where appropriate, default or dismissal.”
Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S.
626 (1961)). A court may dismiss an action based on a
party's failure to prosecute an action, failure to obey a
court order, or failure to comply with local rules.
Fed.R.Civ.P. 16(f); Fed.R.Civ.P. 41(b); L.R. 110; Ghazali
v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing
United States v. Warren, 601 F.2d 471, 474 (9th Cir.
1979)) (dismissal for noncompliance with local rule);
Malone v. United States Postal Serv., 833 F.2d 128,
134 (9th Cir. 1987) (dismissal for failure to comply with
court order). Moreover, the Federal Rules specifically
contemplate dismissal as a potential sanction for a
party's failure to comply with an order compelling
discovery, Fed.R.Civ.P. 37(b)(2)(A)(v), but “[o]nly
‘willfulness, bad faith, and fault' justify
terminating sanctions, ” Conn. Gen. Life Ins. Co.
v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th
Cir. 2007) (quoting Jorgensen v. Cassiday, 320 F.3d
906, 912 (9th Cir. 2003)).
[The Ninth Circuit has] constructed a five-part test, with
three subparts to the fifth part, to determine whether a
case-dispositive sanction under Rule 37(b)(2) is just:
“(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its dockets; (3) the risk of prejudice to the party seeking
sanctions; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” The subparts of the fifth factor
are whether the court has considered lesser sanctions,
whether it tried them, and whether it warned the recalcitrant
party about the possibility of case-dispositive sanctions.
Id. (footnote citations omitted).
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. This action
has been pending since August 2011, and plaintiff shows
little interest in complying with this court's discovery
orders or fulfilling his discovery obligations. As set forth
in the court's September 6, 2017 order, defendants served
their discovery requests on plaintiff on October 10, 2014,
and, after requesting extensions of time, plaintiff was given
a final deadline of May 8, 2015, to submit his responses. ECF
No. 114 at 6. He was warned that there would be no further
extensions of time, absent extraordinary circumstances, and
that he was still required to respond to the requests by May
8, 2015, even though the discovery deadline was otherwise
vacated. Id. (citing ECF No. 80). However, despite
the ample time he was provided, plaintiff failed to provide
any responses,  and according to defendants' motion he
has now failed to comply with the court's order
compelling his responses. ECF No. 121-1 at 5-6. Plaintiff has
not provided any explanation for these failures and
apparently has no intention of fulfilling his obligations as
directed. Counsel has provided a declaration in which she
states that she spoke with plaintiff for approximately thirty
minutes in an attempt to secure his responses without court
intervention and his response was “that he was
‘too busy' to provide his responses anytime within
the next 60 days” and that she should “‘go
ahead' with this motion.” See id. at 14,
the court's record shows that instead of responding to
discovery as ordered, plaintiff filed two lengthy motions for
an extension of time to move for reconsideration of the
discovery order, and an even longer motion for extension of
time to oppose the motion for sanctions. ECF Nos. 115, 118,
122. However, while the motions did state that plaintiff had
injured one of his hands, their length belied any alleged
impairment of his ability to draft documents. Moreover, the
motions failed to explain how the injury justified an
extension of time when plaintiff has previously represented
that he uses a voice-to-text program for drafting.
Id. Additionally, rather than explaining why he
needed the extensions, plaintiff's motions were devoted
almost entirely to addressing the alleged violations of his
constitutional rights while he was in prison, his belief that
this case has been “over litigated, ” the liberal
pleading standard for pro se litigants, the general fact that
he is in school, and his financial hardships. Id.
Plaintiff's actions demonstrate his lack of interest in
complying with court orders and fulfilling his discovery
third factor, risk of prejudice to defendant, also weighs in
favor of dismissal. “To 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 v. Galaza, 291 F.3d 639, 642 (9th Cir.
2002) (citing Malone, 833 F.2d at 131). The risk of
prejudice is considered in relation to plaintiff's reason
for defaulting. Id. (citing Yourish v. Cal.
Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). Plaintiff
has not provided the court with any explanation for his lack
of compliance, though he apparently advised defendants'
counsel that he believed the motion to compel was untimely,
despite the court's explicit finding that it was not, and
that “he was ‘too busy' to provide his
responses anytime within the next 60 days, in part because he
was going to ‘dig out paperwork' that supports his
contentions and file a Judicial Complaint.” ECF No.
121-1 at 14, ¶ 4. The court finds that plaintiff's
unjustified failure to participate in discovery constitutes a
willful and bad faith disregard for the discovery process and
this court's orders. Furthermore, plaintiff's failure
to respond to discovery requests substantially hinders
defendants' ability to investigate and defend against his
allegations, particularly in light of the time that has
passed since the information was first requested.
fourth factor-public policy favoring disposition of cases on
their merits-is greatly outweighed by the factors in favor of
dismissal discussed herein.
the court finds that there are no other, lesser sanctions
that would be satisfactory or effective. Plaintiff was
initially provided more than sufficient time to respond to
the discovery requests and warned that he would not be
provided with further extensions. ECF No. 80. In granting the
motion to compel, the court warned plaintiff that his failure
to comply would result in sanctions that could range all the
way up to dismissal of this case depending on the degree of
his non-compliance (ECF No. 114 at 7), and plaintiff has not
made any attempt to comply with the order. The court's
warning to a party that failure to obey the court's order
will result in dismissal can satisfy the “consideration
of alternatives” requirement. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (citing Malone,
833 at 132-133; Henderson v. Duncan, 779 F.2d 1421,
1424 (9th Cir. 1986)). Given the ample time plaintiff has had
to provide discovery responses, his complete disregard for
this court's order, and his failure to explain his
non-compliance, the court finds that lesser sanctions would
be ineffective and insufficient to address plaintiff's
willful behavior. Exclusionary sanctions would likely be
ineffective, as plaintiff would still be able to testify to
information contained in any documents that he has withheld
and the court would have no practical way of excluding such
testimony. Furthermore, given plaintiff's in forma
pauperis status and numerous assertions of continued
financial hardship, he would likely be unable to pay any
monetary sanctions, making them of little use.
these reasons, the undersigned finds that terminating
sanctions are justified and will recommend granting
IT IS HEREBY RECOMMENDED that defendants' motion for
terminating sanctions (ECF No. 121) be granted and this
action be dismissed for failure to comply with a court order.
See Fed. R Civ. 16(f); Fed. R Civ. P.
37(b)(2)(A)(v); Fed. R Civ. P. 41(b); L.R. 110.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any response
to the objections shall be served and filed within fourteen
days after service of the objections. The parties are advised