(PC) Espino v. Arnold ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN ESPINO, No. 2:17-cv-2198 DAD AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ERIC ARNOLD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court are defendants’ motion to compel (or in the alternative, motion to 21 dismiss) and defendants’ motion for summary judgment. ECF No. 46, 48. For the reasons stated 22 below, the undersigned will recommend that defendants’ motion to dismiss be granted and that 23 their motion for summary judgment be denied as moot. 24 I. MOTION TO COMPEL OR, ALTERNATIVELY, TO DISMISS 25 On April 21, 2022, defendants filed the instant motion to compel plaintiff to respond to 26 their written discovery or in the alternative, to dismiss. ECF No. 46. They request dismissal 27 //// 28 //// 1 pursuant to Federal Rule of Civil Procedure 37(b) and/or 41(b).1 See id. at 6-8. In support of the 2 motion, defendants state that plaintiff has failed to respond to six requests for production of 3 documents, despite having been given several extensions of time to do so.2 Id. at 1-2. To date, 4 plaintiff has not filed a response to defendants’ motion, nor has he requested an extension of time 5 from the court to do so. Given that the deadline for plaintiff to file a response to it has passed, the 6 motion is deemed submitted. See Local Rule 230(l). 7 II. DISCUSSION 8 A. Applicable Law 9 Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action 10 for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 11 Cir. 1992). When determining whether to dismiss a case for failure to comply with a court order, 12 a district court must consider the following: “(1) the public’s interest in expeditious resolution of 13 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 14 the public policy favoring disposition of cases on their merits; and (5) the availability of less 15 drastic alternatives.” Id. at 1260-61 (quoting Thompson v. Housing Auth., 782 F.2d 829, 831 16 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 17 B. Analysis 18 Considering the Ferdik factors, defendants’ motion to dismiss pursuant to Rule 41(b) 19 should be granted for several reasons. First, this case has been on the court’s docket since 2017, 20 and plaintiff’s consistent failure to participate in the discovery process, despite having been given 21 multiple opportunities to do so, both disregards the public’s interest in quickly resolving this 22 matter and impedes the court’s ability to manage its docket efficiently. Despite the fact that 23 discovery began in July of 2021 (see ECF No. 41 – discovery and scheduling order), almost a 24 year and a half later, plaintiff has not produced the discovery defendants have requested, nor has 25 1 Alternatively, defendants ask that the court either enter an order precluding plaintiff’s claim 26 arising from the June 6, 2016, vehicular collision or impose monetary sanctions on plaintiff to cover the costs for generating the instant motion. ECF No. 46 at 8-9. 27 2 According to defendants, plaintiff was released from custody in October 2021. ECF No. 46 at 1-2. Defendants state that after locating plaintiff in November 2021, they re-served him with 28 copies of certain discovery requests, and in April 2022, they deposed plaintiff. Id. 1 he filed a response to defendants’ motion to compel in order to facilitate resolution of the matter. 2 Next, the record demonstrates that defendants have been more than accommodating to 3 plaintiff throughout these proceedings. Defense counsel represents that between August 2021 and 4 April 2022, defendants timely served their discovery requests, attempted to meet and confer with 5 plaintiff on more than one occasion regarding his failure to respond to their requests, and agreed 6 to multiple extensions of time for plaintiff to respond to them. See ECF No. 46 (declaration of 7 counsel) at 10-12. Plaintiff has not disputed these representations. 8 To require defendants to continue to defend against this action and incur litigation costs3 9 is prejudicial to defendants, particularly in light of plaintiff’s apparent abandonment of his case. 10 Furthermore, plaintiff’s failure to continue to prosecute this action renders consideration of public 11 policy favoring disposition of cases on their merits no more than a perfunctory consideration. 12 Finally, it appears that dismissing this matter, though drastic, is the only suitable option 13 remaining. O more than one occasion, plaintiff has been warned that his failure to comply with 14 court orders and rules and/or to participate in this action could result in dismissal of his case. For 15 example, on June 15, 2022, plaintiff was ordered to file a response to the instant motion and was 16 cautioned that his failure to comply with the court’s order might result in dismissal. Id. ECF No. 17 47 at 2. Plaintiff has not responded to that order in any way. And on September 27, 2022, 18 plaintiff was given thirty days to show cause why this matter should not be dismissed for failure 19 to prosecute. See ECF No. 53 at 2-3. Once again, plaintiff was told that failure to respond to the 20 court’s order would result in a recommendation that this matter be dismissed for failure to 21 prosecute. Id. To date, plaintiff has not responded to that order. 22 Failing to comply with court orders and rules can be grounds for sanctions. Fed. R. Civ. 23 P. 41(b); Local Rule 110. Because plaintiff has repeatedly failed over an extended period to 24 comply this court’s orders and with federal and local rules, the sanction of dismissal is 25 appropriate. For these reasons, the undersigned will recommend that defendants’ motion to 26 dismiss be granted. Because dismissal of this action will render defendants’ motion for summary 27 3 Counsel for defendants indicates that she spent four hours preparing the instant motion to 28 dismiss at a cost of $880.00. ECF No. 46 at 12. 1 | judgment moot, it will also be recommended that it be denied as such. 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Defendants’ motion to dismiss (ECF No. 46) be GRANTED; 4 2. Defendants’ motion for summary judgment (ECF No. 48) be DENIED as moot; and 5 3. This case be CLOSED. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 || objections shall be filed and served within fourteen days after service of the objections. The 12 || parties are advised that failure to file objections within the specified time may waive the right to 13 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | DATED: November 7, 2022 15 ththienr—Chnp—e_ ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28