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Williams v. Grant County

United States District Court, D. Oregon, Pendleton Division

February 28, 2018



          PATRICIA SULLIVAN, United States Magistrate Judge

         Pro se plaintiff Douglas Williams brings this civil rights action against defendants Grant County, Sheriff Glenn Palmer, Jackson Derosier, and Michael Alley. This action concerns an apparent suicide attempt that plaintiff made as a detainee at the Grant County Jail in September 2013. Plaintiff alleges defendants were deliberately indifference to his mental health needs. Defendants moved for summary judgment on November 6, 2017. (Docket No. 71). Plaintiff failed to oppose or respond to defendants' Motion. Plaintiff's whereabouts are unknown. On January 26, 2018, the Court issued an Order to Show Cause to plaintiff why it should not grant defendants' Motion for Summary Judgment and dismiss this case for plaintiff's failure to oppose defendants' motion and to prosecute the case. (Docket No. 78). Plaintiff did not respond to the Order within the 14-day deadline. The Court therefore GRANTS defendants' Motion for Summary Judgment, and DISMISSES this action with prejudice, for plaintiff's failure to oppose, to prosecute, and to respond to the Court's Order.


         Plaintiff, represented by counsel, commenced this action on September 17, 2015. (Docket No. 1). Following multiple motions (Docket Nos. 7, 42, 47), the Court on January 3, 2017, granted plaintiff's counsel's Motion to Withdraw due to plaintiff's failure to communicate with counsel (Docket No. 54). On November 16, 2016, defendants moved to dismiss for lack of prosecution (Docket No. 45), which the Court denied on April 6, 2017 (Docket No. 61).

         On November 6, 2017, defendants filed the pending Motion for Summary Judgment. (Docket No. 71). The Court issued a Summary Judgment Advice Notice to plaintiff (Docket No. 73), which was returned as undeliverable on November 22, 2017 (Docket No. 74). Defendants attempted to serve plaintiff with the Motion for Summary Judgment at four addresses, including two prisons where plaintiff had been held, and at plaintiff's mother's address; all mailings were returned as undeliverable. Jagelski Decl. ¶¶ 2, 3 (Docket No. 75). Defendants retained a private investigator to attempt to locate plaintiff via his son and his parole officer, but were unable to find plaintiff by this means. Id. ¶¶ 4-6. Defendants also caused to be published notice of the Motion in two newspapers of general circulation in Grant and Marion Counties. Id. ¶¶ 7-8. Despite these extensive efforts, plaintiff's location remains unknown. Plaintiff's response to defendants' Motion was due December 7, 2017.

         The Court issued plaintiff its Order to Show Cause on January 26, 2018. (Docket No. 78). The Court stated that failure to respond would result in dismissal. Id. Plaintiff's response was due within 14 days of issuance. Plaintiff has filed no response. Mail sent to plaintiff at his Coffee Creek Correctional Facility address was returned as undeliverable on February 1, 2018. (Docket No. 80). Notice of the Order was sent to plaintiff's parole officer. (Docket No. 79).


         I. Dismissal of Plaintiff's Action for Failure to Respond and Prosecute

         Plaintiff has failed to oppose or otherwise respond to defendants' Motion for Summary Judgment. This may be deemed consent to summary judgment and grounds for granting the Motion. See Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994). It may also be deemed failure to prosecute, and a basis for dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999); Fed.R.Civ.P. 41(b). Failure to comply with the Court's Order to Show Cause further constitutes grounds to dismiss. Townsel v. Contra Costa Cty., Cal., 820 F.2d 319, 321 (9th Cir. 1987); W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990).

         In determining whether to dismiss for failure to prosecute or comply with a court order, the court weighs 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).

         The five-factor test strongly favors dismissal in this case:

         1. Expeditious resolution: “[T]he public's interest in expeditious resolution of litigation always favors dismissal.” Yourish, 191 F.3d at 990. This action has been pending for over two years. Plaintiff's whereabouts are unknown. Mail to plaintiff has twice been returned as undeliverable. (Docket Nos. 74, 80). Plaintiff has not opposed a dispositive Motion for Summary Judgment. This factor favors dismissal.

         2. Docket management: “It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants such as” plaintiff. Pagtalunan, 291 F.3d at 642. Plaintiff has not complied with the applicable scheduling rules or the Court's Order to Show Cause. This factor favors dismissal.

         3.Prejudice to defendants: Plaintiff has “offered no clear explanations of what actions he . . . took during the relevant time period[].” Pagtalunan, 291 F.3d at 643. Plaintiff's ‚Äúdelay was ...

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