United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
PATRICIA SULLIVAN, United States Magistrate Judge
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.
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).
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.
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).
Dismissal of Plaintiff's Action for Failure to Respond
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).
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).
five-factor test strongly favors dismissal in this case:
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.
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
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
“delay was ...