(PC) Gao v. Marroquin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ZHANG GAO, Case No. 1:19-cv-00438-BAM (PC) 12 Plaintiff, ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO 13 v. PROSECUTE AND FAILURE TO OBEY COURT ORDER 14 MARROQUIN, et al., (ECF No. 31) 15 Defendants. 16 17 Plaintiff Jason Zhang Gao (“Plaintiff”) is a former state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 19 against Defendant Marroquin (“Defendant”) for retaliation in violation of the First Amendment. 20 All parties have consented to United States Magistrate Judge jurisdiction. (ECF No. 29.) For the 21 reasons that follow, the Court orders that this action be dismissed, with prejudice. 22 I. Background 23 On October 21, 2020, Defendant filed a motion for summary judgment. Fed. R. Civ. P. 24 56. (ECF No. 30.) Plaintiff was provided with notice of the requirements for opposing a motion 25 for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 26 F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). 27 (ECF No. 30-1.) Plaintiff’s opposition or statement of non-opposition was therefore due on or 28 1 before November 16, 2020. 2 On November 30, 2020, the Court ordered Plaintiff to show cause within twenty-one (21) 3 days why this action should not be dismissed, with prejudice, for Plaintiff’s failure to prosecute. 4 (ECF No. 31.) Plaintiff was provided the opportunity to comply with the Court’s order by filing 5 an opposition or statement of non-opposition to the motion for summary judgment. Plaintiff was 6 warned that failure to comply with the Court’s order would result in dismissal of this matter, with 7 prejudice, for failure to prosecute. (Id. at 2.) Plaintiff has failed to submit any response to 8 Defendant’s motion for summary judgment and has not otherwise communicated with the Court. 9 II. Discussion 10 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 11 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 12 within the inherent power of the Court.” District courts have the inherent power to control their 13 dockets and “[i]n the exercise of that power they may impose sanctions including, where 14 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 15 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 16 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 17 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 18 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 19 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 20 (dismissal for failure to comply with court order). 21 In determining whether to dismiss an action, the Court must consider several factors: 22 (1) the public’s interest in expeditions resolution of litigation; (2) the Court’s need to manage its 23 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 24 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 25 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 26 Here, the action has been pending for nearly two years, and Plaintiff’s response or 27 opposition to Defendant’s motion for summary judgment is overdue. Plaintiff is obligated to 28 comply with the Local Rules and was informed by Defendant of the need to oppose a motion for 1 summary judgment. Despite Plaintiff’s duty to comply with all applicable rules and Defendant’s 2 notice, Plaintiff did not file a proper opposition or contact the Court in any way. Plaintiff 3 remained incommunicative after an order from this Court to show cause why this action should 4 not be dismissed. The Court cannot effectively manage its docket if a party ceases litigating the 5 case. Thus, both the first and second factors weigh in favor of dismissal of this action. 6 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, because 7 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 8 action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Because public policy favors 9 disposition on the merits, the fourth factor usually weighs against dismissal. Pagtalunan v. 10 Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party 11 whose responsibility is to move a case toward disposition on the merits but whose conduct 12 impedes progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) 13 Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). 14 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 15 dismissal satisfies the “considerations of the alternatives requirement.” Ferdik, 963 F.2d at 1262; 16 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s November 30, 2020 order to 17 show cause expressly warned Plaintiff that his failure to comply with the Court’s order would 18 result in the dismissal of this matter, with prejudice, for failure to prosecute. (ECF No. 31, p. 2.) 19 Thus, Plaintiff had adequate warning that dismissal of this action could result from his 20 noncompliance. At this stage in the proceedings there is little available to the Court which would 21 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 22 expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 23 making monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to 24 have no effect given that Plaintiff has ceased litigating this case. 25 In summary, Plaintiff is no longer prosecuting this action, and the Court cannot afford to 26 expend resources resolving unopposed dispositive motions in a case which Plaintiff is no longer 27 prosecuting. 28 /// 1 III. Conclusion and Order 2 Accordingly, the Court finds that dismissal is the appropriate sanction and this action is 3 HEREBY DISMISSED, with prejudice, for failure to prosecute and for failure to obey a court 4 order. 5 IT IS SO ORDERED. 6 7 Dated: December 30, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28