Opinion
3:17-cv-01350-MK
01-20-2022
DON A. WEBSTER, Plaintiff, v. UNITED STATES OF AMERICA; RICHARD IVES, Warden, Sheridan Correctional Institution; and ANDREW GRASLEY, Doctor, Director Utilization Review Committee, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge
Pro Se Plaintiff Don A. Webster initiated this lawsuit in August 2017. See ECF No. 2. In April 2020, Defendants moved for summary judgment on all of Plaintiff's claims. ECF No. 25. Ultimately, after extending the deadline for Plaintiff to file a response to Defendants' motion on multiple occasions, Plaintiff's response was due on November 29, 2021. See August 31, 2021 Order, ECF No. 43. After Plaintiff failed to timely respond, the Court issued the following Order to Show Cause:
Plaintiffs response to Defendants' Motion for Summary Judgment was due on 11/29/2021, and Plaintiff has not filed a response. Plaintiff is ordered to show cause in writing by 12/27/2021 why Defendants' motion should not be granted. Plaintiff is advised that he has repeatedly failed to comply with Court deadlines, including responding to Defendants' pending motion, and that failure to respond to this Order will result in the dismissal of this proceeding.
December 6, 2021 Order to Show Cause, ECF No. 44. As of the date of this F&R, Plaintiff has not filed a response to the Court's Order. For the reasons that follow, the Court should DISMISS the complaint and a judgment should be prepared.
Federal courts possess the undisputed authority to control their dockets and dismiss a case that a plaintiff fails to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). Federal Rule of Civil Procedure 41(b) allows for dismissal of an action for failure to prosecute. A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “[Dismissal for failure to prosecute is particularly appropriate when such a failure is coupled with disobedience to court orders or a disregard of established rules.” Gierloff v. Ocwen, No. 6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017) (citation omitted).
In determining whether to dismiss for failure to prosecute or complying with a court order, the courts 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
Dismissal is appropriate in this case for at least two reasons. First, Plaintiffs failure to respond to the Court's Show Cause Order itself weighs in favor of dismissing this action. See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); Fed.R.Civ.P. Rule 41(b). Second, as discussed in more detail below, the Pagtalunan five-factor test also strongly favors dismissal.
The public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance . . . .”). Plaintiff has not participated in this lawsuit since August 2021. The Court also notes that Plaintiffs failure to timely respond resulted in multiple Orders to Show Cause, see ECF Nos. 16, 41, the last of which expressly warned that “failure to respond to this Order will result in the dismissal of this proceeding.” ECF No. 44. The first two factors therefore favor dismissal.
Plaintiff has “offered no clear explanations of what actions he . . . took during the relevant time period[].” Pagtalunan, 291 F.3d at 643. The Court thus finds the third factor weighs in favor of dismissal. Id.
With respect to the availability of less drastic alternatives, the Court has already employed the less drastic alternative of issuing an Order to Show Cause. Plaintiff failed to take advantage of this alternative. Accordingly, this factor also weighs in favor of dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal).
Finally, “[p]ublic policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal, ” Pagtalunan, 291 F.3d at 643, but only weakly because Plaintiffs failure to prosecute or to respond to the Court's Order to Show Cause severely impairs disposition on the merits, see United States ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Importantly, the fifth factor alone cannot outweigh the other four. In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994).
In sum, although public policy favors disposition on the merits, Plaintiff's failures to prosecute this case have obstructed the Court's ability to reach the merits. All other factors weigh in favor of dismissal. Accordingly, the district judge should dismiss this action for lack of prosecution and for failure to comply with court orders.
RECOMMENDATION
For the reasons above, because Plaintiff has failed to follow court orders and failed to prosecute this case, the complaint should be DISMISSED and a judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. 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, 1157 (9th Cir. 1991).