1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED M. VILLERY, Case No. 1:18-cv-01623-JLT-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS THIS ACTION FOR

13 v. PLAINTIFF’S FAILURE TO OBEY

COURT ORDERS AND FAILURE TO

14 D. CROUNSE, et al., PROSECUTE 15 Defendants. 14-DAY DEADLINE 16

Plaintiff Jared M. Villery is proceeding pro se and in forma pauperis in this civil rights 17 action brought pursuant to 42 U.S.C. § 1983. 18

I. RELEVANT PROCEDURAL BACKGROUND

19 On August 16, 2021, Defendant Crounse filed a motion for summary judgment. (Doc. 88.) 20 On that same date, Defendants Garcia, Groves, Guerrero, Haak and Holland also filed a motion 21 for summary judgment. (Doc. 89; see also Doc. 91 [amended memorandum] & Doc. 98 [notice of 22 errata].) 23 On August 19, 2021, this Court issued its Order Staying Briefing on Defendants’ Motions 24 for Summary Judgment. (Doc. 94.) Because Plaintiff’s motion to compel was pending before the 25 Court, summary judgment briefing was stayed, and Plaintiff was advised he “need not file an 26 opposition or statement of non-opposition to either motion until the stay is lifted by the Court.” 27 (Id. at 1-2.) 1 Following the Court’s order denying Plaintiff’s motion to compel and related proceedings 2 concerning Plaintiff’s request for reconsideration, on November 1, 2022, the Court issued its 3 Order Lifting Stay on Summary Judgment Briefing and Order Setting 21-Day Deadline for the 4 Filing of Plaintiff’s Opposition. (Doc. 131.) Plaintiff was ordered to “file his separate opposition 5 or statement of non-opposition to the motion for summary judgment filed by Defendant Crounse, 6 and to the motion for summary judgment filed by Defendants Garcia, Groves, Guerrero, Haak and 7 Holland, no later than 21 days following the date of service of this order.” (Id. at 3, emphasis in 8 original.) 9 When more than 21 days passed without Plaintiff filing an opposition or statement of non- 10 opposition to the two pending motions for summary judgment, the Court issued its Order to Show 11 Cause (OSC) in Writing Why Action Should Not Be Dismissed for Failure to Obey Court Order. 12 (Doc. 132.) Plaintiff was afforded 21 days within which to show cause in writing why the action 13 should not be dismissed for his failure to comply with a court order, or, alternatively, to “file his 14 opposition or statement of non-opposition to Defendant Crounse’s motion for summary judgment 15 and his opposition or statement of non-opposition to the motion for summary judgment filed by 16 Defendants Garcia, Groves, Guerrero, Haak and Holland.” (Id. at 2.) 17 Although more 21 days have now passed, Plaintiff has failed to respond in writing to the 18 OSC and has not filed an opposition or statement of non-opposition to either pending motion for 19 summary judgment. 20 II. DISCUSSION 21 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 22 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 23 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 24 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 25 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 26 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 27 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 1 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 2 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 3 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 4 In determining whether to dismiss an action, the Court must consider several factors: 5 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 6 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 7 cases on their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 8 1439, 1440 (9th Cir. 1988). 9 Here, Plaintiff has neither shown cause for his failure to file an opposition or statement of 10 non-opposition to the pending motions for summary judgment, nor has he filed any opposition or 11 statement of non-opposition to the pending motions for summary judgment. The Court cannot 12 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both 13 the first and second factors—the public’s interest in expeditious resolution of litigation and the 14 Court’s need to manage its docket—weigh in favor of dismissal. Carey, 856 F.2d at 1440. 15 The third factor also weighs in favor of dismissal. Following service of Plaintiff’s original 16 complaint, Defendants Crounse, Guerrero and Haak filed an answer on September 3, 2019. (Doc. 17 22.) Defendant Garcia filed an answer to the original complaint on November 26, 2019. (Doc. 18 31.) Following the filing of Plaintiff’s first amended complaint (Doc. 49), Defendants Garcia, 19 Groves, Guerrero, Haak and Holland filed an answer on May 7, 2021. (Doc. 79.) Defendant 20 Crounse filed an answer on May 10, 2021. (Doc. 80.) All discovery closed on September 19, 21 2022 (see Doc. 130), and the motions for summary judgment have been pending before the Court 22 for more than 16 months. The Court has previously stayed summary judgment briefing to ensure 23 fairness to all parties. The stay on briefing was lifted more than two months ago, on November 1, 24 2022. (See Doc. 131.) 25 A presumption of harm or injury arises from the occurrence of unreasonable delay in 26 prosecuting an action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, despite 27 having been afforded the opportunity to engage in discovery with all Defendants prior to being 1 summary judgment, Plaintiff has taken no action at all. Therefore, the Court finds the third 2 factor—the risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856 F.2d at 3 1440. 4 The fourth factor usually weighs against dismissal because public policy favors 5 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 6 “this factor lends little support to a party whose responsibility it is to move a case toward 7 disposition on the merits but whose conduct impedes progress in that direction.” In re 8 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 9 (citation omitted). Here, Plaintiff is not moving the case forward, and has ceased obeying court 10 orders and prosecuting this action. The fourth factor—the public policy favoring disposition of 11 cases on their merits—also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 12 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 13 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 14 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. Here, the Court’s November 30, 2022 15 OSC expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 16 recommendation for dismissal of this action. (See Doc. 132 at 2 [“Failure to comply with this 17 order will result in a recommendation that this action be dismissed for failure to obey 18 courts orders”].) Plaintiff had adequate warning that dismissal could result from his 19 noncompliance. Thus, the fifth factor— the availability of less drastic sanctions—also weighs in 20 favor of dismissal. Carey, 856 F.2d at 1440. 21 It appears that Plaintiff has abandoned this action. Whether Plaintiff has done so 22 intentionally or mistakenly is inconsequential. It is Plaintiff’s responsibility to comply with the 23 Court’s orders and to prosecute this action. The Court declines to expend its limited resources on 24 a case that Plaintiff has chosen to ignore. 25 III. CONCLUSION AND RECOMMENDATIONS 26 For the reasons stated above, this Court RECOMMENDS that this action be DISMISSED 27 without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute. 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 3 service of these Findings and Recommendations, Plaintiff may file written objections with the 4 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 5 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 6 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 7 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8

IT IS SO ORDERED.

9

10 Dated: January 5, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

11

12

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27