ALLISON CLAIRE, Magistrate Judge.
This civil rights action proceeds on plaintiff's First Amended Complaint (FAC) against sole defendant Sacramento County Sheriff's Officer Eliston, for the use of excessive force during plaintiff's arrest on June 10, 2016. ECF No. 22. On March 26, 2019, the court issued a Discovery and Scheduling Order setting forth the requirements and deadlines for conducting discovery and pursuing dispositive motions. ECF No. 33. Discovery closed on August 16, 2019, which was also the deadline for the parties to file any motions necessary to compel discovery.
Two matters are currently pending: (1) defendant's motion to compel discovery and for sanctions, filed August 16, 2019, ECF No. 40; and (2) plaintiff's proposed Second Amended Complaint (SAC), filed September 3, 2019, ECF No. 43. The court addresses these matters in reverse order.
The proposed SAC flatly acknowledges that plaintiff "can't prove the `excessive force' claim," ECF No. 43 at 6, and instead seeks to challenge plaintiff's arrest on other grounds. First, plaintiff contends that his arrest by Officer Eliston for failure to register as a sex offender violated the Eighth Amendment's prohibition of cruel and unusual punishment, because he is brain damaged and schizophrenic.
In response to plaintiff's proposed SAC, defendant has filed a statement of non-opposition on grounds that plaintiff's concession relieves defendant of the only claim against him.
As this court has previously noted, plaintiff has filed "more than forty other cases . . . challeng[ing] his arrest and the underlying warrant based on his failure to comply with California's sex offender registration requirements." ECF No. 20 at 5 (emphasis added). In none of these cases were plaintiff's putative claims found cognizable in federal court.
Plaintiff's concession that he cannot prove his excessive force claim against defendant Eliston, the omission of that claim from plaintiff's proposed SAC, and the re-assertion of claims in the proposed SAC that have been dismissed in this and plaintiff's several other cases, all support a recommendation that this action be dismissed without further leave to amend.
A further factor supporting dismissal of this case is plaintiff's complete failure to respond to defendant's discovery requests. Defendant states that on June 17, 2019, he served plaintiff by mail with special interrogatories (set one), requests for production of documents (set one) and requests for admissions (set one).
Plaintiff's opposition or response to defendant's discovery motion was due within 21 days after service of the motion. Local Rule 230(l). Allowing three additional days for service of both defendant's motion and plaintiff's response, Fed. R. Civ. P. 6(d) (a total of six days), plaintiff's response should have been received in this court by September 12, 2019. It was not. Plaintiff's failure to respond to defendant's motion" may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions." Local Rule 230(l). Under Rule 37, Federal Rules of Civil Procedure, dismissal of an action is among the authorized sanctions for a party's failure to participate in discovery.
Moreover, plaintiff's total failure to respond to defendant's discovery requests is in violation of this court's Discovery and Scheduling Order, which provided that "[r]esponses to written discovery requests shall be due forty-five (45) days after the request is served." ECF No. 33 at 4.
"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."
These factors weigh in favor of dismissing the instant case. The first two factors — the public's interest in expeditious resolution of litigation, and the court's need to manage its docket — strongly support dismissal. In addition to flooding this court with repetitive complaints, each requiring the court's specific attention, plaintiff now seeks to wholly modify the allegations and claims in the instant case with matters that have already been dismissed. The third factor, risk of prejudice to defendant, also weighs in favor of dismissal. Defendant has already been prejudiced because required to defend against a claim plaintiff now concedes he cannot prove; allowing plaintiff to proceed on previously dismissed allegations against defendant would clearly be further prejudicial. The fourth factor, the public policy favoring disposition of cases on their merits, has been rendered meaningless by plaintiff's present effort to transform the basis of this action, and thus weighs in favor of dismissal. Finally, the court finds that no sanction less drastic than dismissal is warranted under these circumstances. In sum, the undersigned finds that all five
In conclusion, the court finds that plaintiff's complete failure to cooperate in discovery in this case, together with plaintiff's express abandonment of his only potential claim against the defendant, warrant immediate dismissal of this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. This action be dismissed with prejudice; and
2. Plaintiff's motion to compel discovery and for sanctions, ECF No. 40, be denied as moot.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 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." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.