(PC) Thesus v. Ramos ( 2022 )

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GUNTER D. THESUS, Case No. 1:20-cv-00593-DAD-BAK (EPG) (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT: (1) THIS CASE BE 12 v. DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH 13 S. RAMOS, et al., A COURT ORDER AND TO PROSECUTE THIS CASE; AND (2) ALL OUTSTANDING 14 Defendants. MOTIONS BE DENIED AS MOOT 15 (ECF Nos. 48, 49) 16 FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Gunter D. Thesus is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on Eighth Amendment 20 excessive force claims against Correctional Officers (“CO”) S. Ramos, J. Gonzalez, D. Garcia, 21 and D. Negrete.1 (ECF Nos. 13, 17.) 22 On September 23, 2021, Defendants Gonzalez, Garcia, and Negrete filed a motion for 23 summary judgment based on Plaintiff’s failure to exhaust administrative remedies before filing 24 suit. (ECF No. 48.) Defendant Ramos filed a separate motion for summary judgment, also 25 based on non-exhaustion of remedies. (ECF No. 49.) In accordance with Local Rule 260(a), the 26 motions were accompanied by statements of undisputed facts, supported by the Declaration of J. 27 Stone, Grievance Coordinator at CCI. (ECF No. 48-2.); see Fed. R. Civ. P. 56(c)(1)(A). 28 2 Rule 56 of the Federal Rules of Civil Procedure and Local Rule 230(l).2 Local Rule 230(l) 3 provides: 4 Opposition, if any, to the granting of the motion shall be served and filed by the responding party not more than twenty-one (21) days after the date of service of 5 the motion. A responding party who has no opposition to the granting of the 6 motion shall serve and file a statement to that effect, specifically designating the motion in question. Failure of the responding party to file an opposition or to file 7 a statement of no opposition may be deemed a waiver of any opposition to the 8 granting of the motion and may result in the imposition of sanctions. 9 Id. 10 A pro se litigant is bound by the Federal Rules Civil Procedure and the Local Rules of 11 this Court, and all obligations placed on attorneys apply to unrepresented parties. L.R. 183(a). 12 Therefore, the pro se Plaintiff must follow the rules governing summary judgment motions. The 13 Ninth Circuit has “held consistently that courts should construe liberally motion papers and 14 pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” 15 Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 F.3d 1144, 16 1150 (9th Cir. 2010)). While prisoners are relieved from strict compliance, they still must 17 “identify or submit some competent evidence” to support their claims. Soto, 882 F.3d at 872. 18 Despite Defendant Ramos’s Rand warning and the requirements of Federal Rule of Civil 19 Procedure 56 and Local Rule 230(l), Plaintiff did not file responses in opposition or a statement 20 of no opposition within twenty-one days. After affording Plaintiff additional time to respond, on 21 October 25, 2021, the Court entered an order directing Plaintiff to file responses to the 22 Defendants’ motions for summary judgment within twenty-one days and warned: “The failure to 23 do so will result in consideration of each motion without the benefit of a response.” (ECF No. 50.) 24 More than twenty-one days passed, and Plaintiff failed to comply with the Court’s order 25 by filing responses in opposition and to prosecute the case. Under Federal Rule of Civil 26 Procedure 56(e), where a party fails to address another party’s assertion of fact, the court may 27 2 This warning is minimally sufficient under Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998). The 28 notice to Plaintiff submitted by Defendants Gonzalez, Garcia, and Negrete was inadequate to satisfy the requirements of Rand. However, given the warning provided by Defendant Ramos and the Court’s directive to file a 2 the movant is entitled; or “issue any other appropriate order.” Fed. R. Civ. P. 56(e)(1)–(4). 3 Here, the Court gave Plaintiff a second opportunity by directing him to respond to Defendants’ 4 factual assertions. (See ECF No. 50.) Because of Plaintiff’s failure to comply with this order 5 and advance the litigation, the Court finds it appropriate to recommend entry of an order 6 dismissing this action without prejudice for failure to comply with a court order and failure to 7 prosecute. 8 In determining whether to dismiss an action for failure to comply with a court order or 9 failure to prosecute, “the Court must weigh the following factors: (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 12 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 13 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 14 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 15 Pagtalunan, 291 F.3d at 642 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 16 1999)). Accordingly, the first factor weighs in favor of dismissal. 17 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 18 determine whether the delay in a particular case interferes with docket management and the 19 public interest . . . . It is incumbent upon the Court to manage its docket without being subject to 20 routine noncompliance of litigants . . . .” Pagtalunan, 291 F.3d at 642. Here, Plaintiff’s failure 21 to respond to Defendant’s motion for summary judgment, despite being ordered to do so by the 22 Court, is consuming the Court’s limited time. It is also delaying resolution of this case and 23 interfering with docket management. Therefore, the second factor weighs in favor of dismissal. 24 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 25 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 26 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 27 Id. at 643, and Plaintiff’s repeated failure to respond to Defendants’ motions for summary 28 judgment caused a delay in this case. Therefore, the third factor weighs in favor of dismissal. 1 Lesser sanctions than dismissal would not be satisfactory to protect the Court from 2 | further unnecessary expenditure of its scarce resources. Plaintiff has chosen not to prosecute this 3 || action by opposing Defendants’ motions for summary judgment and has failed to comply with a 4 | court order, despite being warned of possible dismissal. Considering Plaintiff's incarceration 5 | and in forma pauperis status, monetary sanctions would be of little use. Plaintiff has apparently 6 | decided to stop prosecuting this case, so excluding evidence would be a meaningless sanction. 7 | Additionally, because the dismissal being considered in this case is without prejudice, the Court 8 || is stopping short of imposing the harshest possible sanction of dismissal with prejudice. 9 Finally, because public policy favors disposition on the merits, this factor weighs against 10 dismissal. /d. (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). 11 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 12 | Accordingly, the Court HEREBY RECOMMENDS that: 13 1. This case be dismissed without prejudice because of Plaintiffs failure to comply 14 | with a court order and to prosecute this case; 15 2. All outstanding motions be denied as moot; and 16 3. The Clerk of Court be directed to close this case. 17 These findings and recommendations will be submitted to the United States District 18 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 19 | (4) days after being served with these findings and recommendations, any party may file 20 | written objections with the Court and serve a copy on all parties. Such a document should be 21 | captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 22 | advised that failure to file objections within the specified time may waive the right to appeal the 23 | district court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. 25 | Dated: _ May 13, 2022 [sf ey — 6 UNITED STATES MAGISTRATE JUDGE 27 28