(PC) Reyna v. Kings County Jail Medical

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA PETE REYNA, Case No. 1:19-cv-01202-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION KINGS COUNTY JAIL MEDICAL, et al., FINDINGS AND RECOMMENDATION REGARDING DEFENDANT’S MOTION TO 15 Defendants. DISMISS FOR FAILURE TO PROSECUTE 16 (ECF No. 37) 17 FOURTEEN (14) DAY DEADLINE 19 Plaintiff Pete Reyna (“Plaintiff”) is a former pretrial detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint against Defendant Siddiqi1 for violation of the Fourteenth Amendment arising out of the delay in Plaintiff’s medical care.

23 Defendant’s motion for summary judgment, filed April 22, 2020, is pending before the Court.2 (ECF No. 26.) Plaintiff filed an opposition on July 9, 2020, and Defendant filed a reply Erroneously sued as “Sadiki.”

27 2 Pursuant to the Court’s order of June 17, 2020, the motion for summary judgment was re-served on Plaintiff on June 18, 2020. (ECF No. 33.) Defendant also re-filed the motion with the Court on the same date. (ECF No. 32.)

1 on July 15, 2020. (ECF Nos. 34, 35.) The motion is fully briefed.

2 Currently before the Court is Defendant’s motion to dismiss for lack of prosecution, filed October 29, 2020. (ECF No. 37.) Although Plaintiff has not yet had an opportunity to file a response, the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l).

6 In the motion, Defendant argues that Plaintiff’s failure to conduct discovery demonstrates that he has abandoned this action, and therefore the first amended complaint should be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 37.)

9 Defendant argues that while Plaintiff has responded to discovery requests from Defendant and filed an opposition to the pending motion for summary judgment, because Plaintiff has not served a single discovery request, Plaintiff has essentially abandoned this action, causing undue delays.

12 Defendant further argues that he will not be able to proceed with this action without Plaintiff’s participation, and will be prejudiced. Finally, Defendant contends that it is highly unlikely that this action will be resolved on its merits, due to Plaintiff’s failure to conduct his own discovery.

15 (Id.) 16 In determining whether to dismiss an action for failure to prosecute, the Court must consider several 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 sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 21 1439, 1440 (9th Cir. 1988); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). The amount of prejudice resulting from the discovery violations and the availability of less drastic sanctions are said to be “key factors.” Wanderer v. Johnston, 910 F2d 652, 656 (9th Cir. 1990).

26 The Court finds Defendant’s argument wholly unpersuasive. First, the Court is aware of no authority—and Defendant has failed to identify any—that requires a plaintiff to conduct any discovery. While Plaintiff is obligated to cooperate with discovery, Defendant admits that Plaintiff has responded to discovery requests from Defendant and opposed the pending motion for summary judgment. This belies Defendant’s contention that Plaintiff has “abandoned this litigation,” or that Plaintiff is responsible for the case “sitting dormant on the court’s docket.”

4 (ECF No. 37, pp. 3, 4.) The Court is similarly unconvinced by Defendant’s conclusory statements that he will not be able to proceed with this action without Plaintiff’s participation, or that he will be prejudiced. Plaintiff’s failure to conduct his own discovery does not impede Defendant’s defense of this action in any way, and the alleged prejudice to Defendant is left unexplained and unsupported.

9 Furthermore, the Court is perplexed by Defendant’s assertion that “[i]t is highly unlikely that this action will be resolved on its merits” due to Plaintiff’s failure to conduct discovery. (Id.) Defendant’s motion for summary judgment—which goes to the merits of this action—remains pending before the Court. The motion was filed and fully briefed well before the close of discovery, and therefore any argument that additional discovery is necessary for this case to proceed, falls flat. If Defendant believed that additional discovery conducted by Plaintiff was necessary to fully adjudicate the motion for summary judgment—and thus, the merits of this action—Defendant should have waited until after the close of discovery to file the motion.

17 Finally, the Court notes that it is Defendant’s instant motion, rather than Plaintiff’s failure to conduct discovery, which implicates the Rule 41(b) factors regarding expeditious resolution of litigation, the Court’s need to manage its docket, and the public policy favoring the disposition of cases on their merits. Rather than allowing the Court to decide the pending summary judgment motion on the merits, Defendant has delayed this litigation by filing this unsubstantiated motion, requiring a further expenditure of scarce judicial resources.

23 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action.

25 Further, it is HEREBY RECOMMENDED that Defendant’s motion to dismiss for failure to prosecute, (ECF No. 37), be denied.

27 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file objections within the specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

9 Dated: November 2, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE