United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate
Jeromy Bryant is proceeding in forma pauperis and without
counsel. On April 17, 2018, this Court issued a Scheduling
Order requiring the parties to file an initial disclosure
statement within 60 days and to exchange documents which may
be used in proving or denying any party's claims or
defenses. (Doc. 9 at 1-3, ¶ I(A), (B).) On June 1, 2018,
Defendants filed a motion for summary judgment based upon Mr.
Bryant's alleged failure to exhaust his administrative
remedies. (Doc. 14.)
Bryant has not complied with Paragraphs I(A) and I(B) of the
Court's April 17, 2018 Scheduling Order (Doc. 9) and he
has not responded to Defendants's motion for summary
judgment (Doc. 14) within the time afforded by Local Rule
7.1(d)(1). Based upon Mr. Bryant's failure to comply with
the Court's April 17, 2018 Scheduling Order (Doc. 10) and
his failure to respond to Defendants' Motion for Summary
Judgment (Doc. 14), this matter should be dismissed pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.
Court has the inherent power to sua sponte dismiss a case for
lack of prosecution or failure to comply with a court order.
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986); see also Fed.R.Civ.P. 41(b); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
Dismissal, however, is a harsh penalty and should be imposed
as a sanction only in extreme circumstances.
Henderson, 779 F.2d at 1423.
following factors must be considered before dismissal is
imposed as a sanction for failure to prosecute or failure to
comply with a court order: (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/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 (9th Cir. 2002) (citing Ferdik, 963 F.2d at
public's interest in expeditious resolution of litigation
always favors dismissal.” Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This case
is at a critical stage in that it is the beginning of the
discovery process and Mr. Bryant has failed to comply with
Court imposed discovery obligations and failed to respond to
a motion. This factor weighs in favor of dismissal.
much the same reasons, the second factor supports dismissal.
The Ninth Circuit has noted that “[i]t is incumbent
upon us to preserve the district courts' power to manage
their docket without being subject to the endless vexatious
noncompliance of litigants. . . .” Ferdik, 963
F.2d at 1261. “The trial judge is in the best position
to determine whether the delay in a particular case
interferes with docket management and the public
interest.” Pagtalunan, 291 F.3d 639
(citing Yourish, 191 F.3d 983). The Court must be
able to manage its docket. It cannot do so if Mr. Bryant
refuses to comply with Court imposed deadlines. Therefore,
this factor favors dismissal.
third factor requires the Court to weigh the risk of
prejudice to the Defendants. “To prove prejudice, a
defendant must establish that plaintiff's actions
impaired defendant's ability to proceed to trial or
threatened to interfere with the rightful decision of the
case.” Malone v. United States Postal Service,
833 F.2d 128, 131 (9th Cir. 1987). Mr. Bryant's refusal
to litigate this matter makes prejudice a foregone
conclusion. The longer this matter sits, the more prejudice
Court has considered and provided less drastic alternatives.
Alternatives may include “allowing further amended
complaints, allowing additional time, or insisting that
appellant associate experienced counsel.” Nevijel
v. North Coast Life Insurance Co., 651 F.2d 671, 674
(9th Cir. 1981). Although less drastic alternatives to
dismissal should be considered, the court is not required to
exhaust all such alternatives prior to dismissal.
Id. Mr. Bryant was made aware of his disclosure
obligations in the Court's April 17, 2018 Scheduling
Order. (Doc. 9.) Mr. Bryant did not respond. The Court can
envision no further alternatives to dismissal.
last factor weighs against dismissal because public policy
favors the disposition of cases on their merits.
Pagtalunan, 291 F.3d 639 (citing Hernandez v.
City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).
But in light of the other four factors favoring dismissal,
the Court finds that this matter should be dismissed for
failure to prosecute and failure to comply with the
upon the foregoing, the Court issues the following:
matter should be DISMISSED pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. The Clerk of Court should
be directed to close this matter, enter judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure, and
terminate all pending motions.
Clerk of Court should be directed to have the docket reflect
that the Court certifies pursuant to Rule 24(a)(3)(A) of the
Federal Rules of Appellate Procedure that any ...