Opinion
No. 2:12-cv-2249 TLN CKD P (TEMP)
04-08-2016
GREGORY C. BONTEMPS, Plaintiff, v. RON BARNES et al., Defendant.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Abbott's motion to compel and request for monetary or terminating sanctions.
For the reasons discussed herein, the court will recommend granting defendant's request for terminating sanctions pursuant to Federal Rule of Civil Procedure 41(b).
BACKGROUND
Plaintiff is proceeding on his original complaint in this action against defendant Abbott on claims for excessive use of force and retaliation. (ECF Nos. 1 & 8) On November 12, 2014, the court issued a discovery and scheduling order in this case that clearly laid out when the parties could serve discovery requests and when the parties needed to respond to discovery requests. (ECF No. 28) Plaintiff has ignored this court's discovery and scheduling order as well as this court's more recent orders granting defendant Abbott's motions to compel.
Specifically, on February 25, 2015, defendant Abbott filed his first motion to compel, which plaintiff failed to oppose. (ECF No. 29) On April 9, 2015, then-Magistrate Judge Dale A. Drozd granted defendant Abbott's motion. (Id.) Judge Drozd found that plaintiff had not responded at all to Defendant's Interrogatories, Set One, or Defendant's Requests for Production, Set One. (ECF No. 30) Judge Drozd ordered plaintiff to serve defense counsel with his responses to defendant's discovery requests within twenty-one days. (Id.) Judge Drozd also cautioned plaintiff that his failure to timely oppose motions to compel or other motions brought by defendant Abbott could result in a recommendation for dismissal of this action based on plaintiff's failure to prosecute the case. (Id.)
On May 21, 2015, defendant Abbott filed a second motion to compel, which again plaintiff failed to oppose. (ECF No. 33) The undersigned reviewed plaintiff's responses to defendant's interrogatories and found that they were incomplete, nonresponsive, and/or nonsensical. (Id.) The court ordered plaintiff to serve further responses to Defendants' Interrogatories, Set One, Nos. 1-5, 7-9, and 12-17, within twenty-one days. (Id.) The court also found that plaintiff had not adequately responded to defendant's seven requests for production of documents. (Id.) Plaintiff had neither objected to defendant's requests nor produced a single document even though he appeared to acknowledge the existence of documents responsive to the defendant's requests. (Id.) The court ordered plaintiff to serve further responses to Defendants' Requests for Production of Documents Nos. 1-7, within twenty-one days. (Id.)
The court also warned plaintiff once more that he was required to respond or state in writing his lack of opposition to defendant Abbott's motions and that his repeated failure to comply with this court's orders to oppose or affirmatively state his non-opposition to defendant's motions could result in a recommendation for dismissal of this action based on plaintiff's failure to prosecute the case. (Id.) Finally, the court denied defendant's request for an award of monetary sanctions against plaintiff, but the court cautioned plaintiff that if he failed to provide defense counsel with further responses to defendant Abbott's discovery requests as this court ordered, the court would entertain a renewed motion to compel with a request for an award of expenses and/or a motion to dismiss this action based on plaintiff's failure to prosecute. (Id.)
On January 22, 2016, defense counsel filed a third motion to compel, which once again plaintiff has failed to oppose. (ECF No. 38) In the pending motion, defense counsel contends that plaintiff has not supplemented his interrogatory responses or produced any documents in response to defendant's discovery requests. (Id.) Instead, plaintiff has instructed defense counsel to petition the California Department of Corrections and Rehabilitation and/or this court for the documents. (Id.) Defense counsel argues that the court should compel plaintiff to properly respond to defendant's discovery requests and impose monetary sanctions on him, or alternatively, the court should dismiss this action. (Id.)
DISCUSSION
"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In Ferdik, the United States Court of Appeals for the Ninth Circuit held that a district court did not abuse its discretion when it dismissed a pro se litigant's civil rights action for failing to file an amended complaint. The court explained that, in deciding whether to dismiss a case for failure to comply with a court order, the district court must weigh five factors:
"(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives."Id. at 1260-61 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.3d 829, 831 (9th Cir. 1986).
In this case, the first two factors as well as the fifth factor cited by the court in Ferdik strongly support dismissal of this action. This case has been pending before the court since August 30, 2012. Although discovery in this case closed on February 27, 2015, this case has not moved past the discovery stage for more than a year because of plaintiff's repeated failure to respond to defendant's discovery requests in compliance with this court's prior orders. This court has twice ordered plaintiff to respond to defendant's discovery requests and has provided him with guidance on how to do so. This court has also twice warned plaintiff that he is required to respond or state in writing his lack of opposition to all of defendant Abbott's motions and that his repeated failure to comply with this court's orders to oppose or affirmatively state his non-opposition to defendant's motions could result in a recommendation for dismissal of this action based on plaintiff's failure to prosecute the case. Inexplicably, plaintiff has once again failed to respond to defendant Abbott's discovery requests and has failed to file any response to defendant's pending motion to compel.
Plaintiff's refusal to participate fully in discovery and prosecute this action has made it impossible for this court to adjudicate this civil action. Plaintiff's repeated failure to comply with court orders demonstrates that further time spent by the court on this case will consume scarce judicial resources in addressing litigation which plaintiff has shown he has no intention to diligently and properly pursue. Under these circumstances, the court has no suitable less drastic alternative but to recommend dismissal of this action.
The pro se plaintiff is proceeding in forma pauperis and cannot pay a monetary sanction. In addition, imposing the lesser sanctions suggested by Rule 37(b) would not be appropriate and/or would be tantamount to a default judgment in defendant's favor. --------
The third factor discussed in Ferdik, the risk of prejudice to defendant Abbott, also weighs in favor of dismissal. As this court previously advised plaintiff, defendant Abbott is entitled to discover the kind of information he seeks with the interrogatories and requests for production of documents at issue. Plaintiff's failure to respond to defendant's discovery requests prevents the defendant from addressing plaintiff's claims and unnecessarily delays resolution of this action thereby forcing the defendant to incur additional time and expense. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) ("When considering prejudice to the defendant, 'the failure to prosecute diligently is sufficient by itself to justify dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure.... The law presumes injury from unreasonable delay.'") (quoting Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976)).
Finally, the fourth factor, public policy favoring disposition of cases on the merits, weighs against dismissal of this action. However, for the reasons set forth above, the first, second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, those factors outweigh the general public policy favoring disposition of cases on their merits.
CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendant's request for terminating sanctions (Doc. No. 38) be granted; and
2. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: April 8, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE