(PC) Shropshire v. D'Agostini ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN NEIL SHROPSHIRE, No. 2:21-cv-0466 WBS DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOHN D’AGOSTINI, et al., 15 Defendants. 16 17 Plaintiff is a former1 county jail inmate proceeding pro se with a civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff claims he received inadequate dental care while 19 incarcerated in El Dorado County. For the reasons set forth below, the undersigned will 20 recommend that this action be dismissed. 21 //// 22 //// 23 //// 24 1 Plaintiff filed a notice of change of address dated October 26, 2021, notifying the court of his 25 new address and indicating that his release from custody was imminent. (ECF No. 15.) Additionally, review of the El Dorado County inmate locator website indicates that plaintiff is no 26 longer in custody. The court may take judicial notice of information stored on the Shasta County Sheriff’s inmate locator website. See In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1024 (N.D. 27 Cal. 2014) (a court may take judicial notice of information on “publicly accessible websites” not subject to reasonable dispute); Louis v. McCormick Schmick Restaurant Corp., 460 F. Supp. 2d 28 1 I. Motion to Compel 2 On June 6, 2022, defendant Danialson filed a motion to compel and for sanctions. (ECF 3 No. 24.) Therein, Danialson alleged that plaintiff had not responded to discovery requests and 4 failed to appear at a properly noticed deposition on May 26, 2022. (ECF No. 24-1 at 2-5.) 5 Danialson requested that the court issue terminating sanctions or alternatively that plaintiff be 6 compelled to respond to the discovery requests. (Id. at 6-13.) Plaintiff has not responded to the 7 motion. 8 Because, as set forth below, the undersigned will recommend that this action be 9 dismissed, it will deny the motion to compel as moot. In the event the findings and 10 recommendations are not adopted, defendant may file a renewed motion to compel. 11 II. Plaintiff’s Failure to Oppose Defendant’s Motion to Compel 12 By order dated August 24, 2022, plaintiff was ordered2 to file an opposition or statement 13 of non-opposition to defendant Danialson’s motion to compel within thirty days. (ECF No. 26.) 14 Those thirty days have passed, and plaintiff has not filed an opposition, statement of non- 15 opposition, requested additional time to file an opposition or statement of non-opposition, or 16 otherwise responded to the court’s order. In light of plaintiff’s failure to respond, the undersigned 17 will recommend that this action be dismissed. 18 A. Legal Standards 19 “District courts have the inherent power to control their dockets and in the exercise of that 20 power they may impose sanctions including, where appropriate, dismissal of a case.” Bautista v. 21 L.A. Cnty., 216 F.3d 837, 841 (9th Cir. 2000) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 22 (9th Cir. 1992)). Involuntary dismissal is one of the harshest sanctions at a trial court’s disposal, 23 since it denies the plaintiff his day in court; and as a result, it is reserved for use only in the most 24 extreme circumstances. Fed. R. Civ. P. 41(b); Thompson v. Housing Auth. of L.A., 782 F.2d 25 829, 831 (9th Cir. 1986). In determining whether to dismiss a claim for failure to prosecute or 26 27 2 The August 24, 2022, order was sent to plaintiff’s address of record and was not returned as undeliverable. Pursuant to Local Rule 182(f), service of documents at the record address of the 28 1 failure to comply with a court order, the court must weigh the following factors: (1) the public’s 2 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 3 risk of prejudice to defendants; (4) the availability of less drastic alternatives; and (5) the public 4 policy favoring disposition of cases on their merits. Ferdik, 963 F.2d at 1260-61. 5 B. Analysis 6 1. Public’s Interest in Expeditious Resolution of Litigation 7 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 8 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 9 This action has been pending since January 1, 2021.3 (ECF No. 1 at 19.) Defendant 10 Danialson’s motion to compel was filed on June 6, 2022. (ECF No. 24.) Plaintiff filed a notice 11 of change of address dated October 26, 2021. (ECF No. 15.) Since that time, he has not 12 responded to defendant’s discovery requests or orders from the court. His failure has prevented 13 this action from moving forward. Accordingly, this factor favors dismissal. 14 2. Court’s Need to Manage its Docket 15 “District courts have the inherent power to control their dockets. In the exercise of that 16 power they may impose sanctions including, where appropriate, default or dismissal.” Thompson 17 v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 18 626, 630 (1961)). 19 As set forth above, plaintiff has not participated in discovery or responded to court orders 20 since October 2021. Thus, it appears he has lost interest in litigating this action. Further, time 21 spent by the court on this action would consume scarce judicial resources in addressing litigation 22 which plaintiff demonstrates no intention to pursue. Accordingly, this factor weighs in favor of 23 dismissal. 24 //// 25 //// 26 3 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 28 1 3. Risk of Prejudice to Defendants 2 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 3 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 4 case.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Malone v. U.S. Postal 5 Service, 833 F.2d 128, 131 (9th Cir. 1987)). The “pendency of a lawsuit is not sufficiently 6 prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). 7 Plaintiff’s failure to participate in discovery has prejudice defendants because it impairs 8 defendants’ ability to determine relevant defenses to plaintiff’s claims and has delayed resolution. 9 See Kirkelie v. Thissell, No. 1:15-cv-00735 DAD SAB (PC), 2018 WL 1272227 at *2 (Plaintiff’s 10 failure to respond to discovery requests “significantly impairs the Defendants’ ability to go to trial 11 and determine whether Plaintiff has adequately exhausted administrative remedies and to make 12 rightful and informed decisions as to whether this affirmative defense should be explored. 13 Plaintiff[’s] failure to respond to discovery has created an unreasonable delay, which in turn[] 14 creates a presumption of prejudice.”); see also Granderson v. California Corrections 15 Rehabilitations, No. 2:19-cv-2211 JAM AC, 2022 WL 2333964 at *3 (E.D. Cal. June 28, 2022) 16 (finding plaintiff’s failure to respond to discovery requests and refusal to attend a properly 17 noticed deposition was prejudicial to defendants). Accordingly, this factor weighs in favor of 18 dismissal. 19 4. Availability of Less Drastic Alternatives 20 Warning a plaintiff that failure to obey a court order will result in dismissal can suffice to 21 meet the “consideration of alternatives” requirement. Malone, 833 F.2d at 132 (citing Buss v. 22 Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984)). 23 Plaintiff was previously advised that failure to respond to the court’s order would result in 24 a recommendation that this action be dismissed. (ECF No. 26.) In light of the court’s warning, 25 this factor weighs in favor of dismissal. 26 5. Public Policy Favoring Disposition of Cases on Their Merits 27 Public policy favors disposition of cases on the merits. Thus, this factor weighs against 28 dismissal. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). The undersigned 1 | finds that four of the five Ferdik factors supports dismissal, and thus, outweigh the general public 2 | policy favoring disposition on the merits. See Ferdik, 963 F.2d at 1263. 3 I. Conclusion 4 For the reasons set forth above, IT IS HEREBY ORDERED that defendant Danialson’s 5 | motion to compel (ECF No. 24) is denied as moot. 6 IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule 7 | of Civil Procedure 41(b). 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 10 | after being served with these findings and recommendations, any party may file written 11 | objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 | objections shall be filed and served within fourteen days after service of the objections. The 14 | parties are advised that the failure to file objections within the specified time may waive the right 15 | to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: October 5, 2022 17 18 19 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 | pp:12 54 DB/DB Prisoner Inbox/Civil Rights/S/shro0466.no oppo fr 25 26 27 28