(PC) Madrid v. De La Cruz, et al., No. 1:2018cv00947 - Document 87 (E.D. Cal. 2021)
Court Description: ORDER ADOPTING 78 Findings and Recommendations; ORDER DENYING 81 Motion for Extension of Time to submit evidence in support of his objections is DENIED; ORDERED that this case is dismissed, without prejudice, due to plaintiffs failure to prosecute and failure to comply with court orders, signed by District Judge Dale A. Drozd on 1/2/2021. CASE CLOSED (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JOSEPH MADRID, 12 Plaintiff, 13 14 No. 1:18-cv-00947-DAD-EPG (PC) v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS A. DE LA CRUZ, et al., (Doc. No. 78) 15 Defendants. 16 Plaintiff David Madrid is a prisoner proceeding pro se and in forma pauperis in this civil 17 18 rights case filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 2, 2020, the assigned magistrate judge issued findings and recommendations, 20 21 recommending that this case be dismissed without prejudice due to plaintiff’s failure to prosecute 22 and failure to comply with court orders. (Doc. No. 78 at 4.) Plaintiff was provided fourteen (14) 23 days to file objections to the findings and recommendations. (Id. at 4–5.) Plaintiff filed his 24 objections to the findings and recommendations on July 27, 2020.1 (Doc. No. 81.) 25 1 26 27 28 The caption of plaintiff’s objections states that he is requesting an extension of time to submit evidence in support of his objections. (Doc. No. 81.) However, in the body of this filing plaintiff fails to request any such extension of time nor does he explain why an extension of time is necessary. Moreover, plaintiff attached evidence to his objections. (See id. at 15–46.) Accordingly, the court will deny plaintiff’s request for an extension of time as unsupported and unnecessary. 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 3 including plaintiff’s objections, the court finds the findings and recommendations to be supported 4 by the record and proper analysis. 5 In plaintiff’s objections, he describes several difficulties he has faced in litigating this 6 action while incarcerated, including that (1) the process by which jail phone minutes are 7 processed did not allow him to call the court provided phone number for a March 2, 2020 8 scheduling conference, and he asked two family members to alert the court clerk of his difficulty 9 in that regard (Doc. No. 81 at 2); (2) plaintiff has consistently informed the court that it is 10 impossible for him to obtain copies of legal documents and materials (id. at 3); (3) the Los 11 Angeles County jails’ mail staff have been overworked and quarantined, preventing plaintiff from 12 meeting court deadlines (id. at 4–6; see also id. at 24–30); and (4) the COVID-19 pandemic has 13 inhibited his ability to litigate this case (id. at 6). However, on May 13, 2020 the magistrate judge 14 granted plaintiff an additional twenty-one days to respond both to defendants’ motion to compel 15 and the court’s order to show cause “given Plaintiff’s allegations regarding the quarantine and 16 lack of access to legal resources.” (Doc. No. 74 at 1 n.1.) In granting plaintiff that extension of 17 time, the magistrate judge also stated that “[i]f Plaintiff needs additional time to respond, he 18 should file a motion for an extension of time.” (Id.) Thus, even assuming arguendo that 19 plaintiff’s allegations are true, he should have but did not file a motion seeking a further extension 20 of time. As explained in the pending findings and recommendations, plaintiff has yet to explain 21 why he “twice ignored this Court’s order for him to provide initial disclosures, or any explanation 22 as to why he did not respond to Defendants’ discovery requests even though he was explicitly 23 warned that failing to respond to discovery requests could lead to sanctions.” (Doc. No. 78 at 2.) 24 In his objections plaintiff also describes his encounter with an attorney who claimed he 25 would represent plaintiff despite being suspended from the practice of law. Plaintiff asserts that 26 he hired attorney Anthony Contreras in February 2020, by sending funds to his mother to pay 27 attorney Contreras. (Doc. No. 81 at 6.) According to plaintiff, although he believed the attorney 28 would begin controlling the case at that point, attorney Contreras failed to answer phone calls 2 1 from plaintiff. (Id.) Plaintiff asked his family to provide this court with this explanation of the 2 circumstances, as he continued to receive mail from the court. (Id. at 6–7.) According to 3 plaintiff, it was not until July 2, 2020 that attorney Contreras wrote him a letter explaining that his 4 state bar license had been revoked or suspended.2 (Id. at 7.) Even accepting plaintiff’s argument 5 that he was “duped” by attorney Contreras (id. at 9), the court is not persuaded that this fact 6 undermines the analysis set forth in the pending findings and recommendations. Plaintiff 7 previously stated in his May 11, 2020 motion seeking the appointment of counsel on his behalf 8 that attorney Contreras “ha[d] failed to commence any involvement to date” despite “continu[ing] 9 to verbally promise his actions.” (Doc. No. 71 at 2.) In that motion, which was actually dated by 10 plaintiff back on May 1, 2020, plaintiff stated that at that time he hoped to gain assistance from 11 the court in obtaining counsel. (Id.) In light of these representations by plaintiff himself, the 12 court declines to accept plaintiff’s contention he continued to reasonably rely on attorney 13 Contreras until July 2, 2020. Even if plaintiff’s contention were accepted, upon receiving 14 attorney Contreras’ letter, plaintiff clearly should have either filed a motion for an extension of 15 time to respond to defendants’ motion to compel, or at the very least addressed in his objections 16 why he could not adequately respond to discovery requests. 17 The court is also unpersuaded by plaintiff’s remaining objections. Plaintiff argues that he 18 did submit his initial disclosures. (Doc. No. 81 at 1–2.) The magistrate judge acknowledged that 19 plaintiff eventually filed initial disclosures following the issuance of the order to show cause, but 20 nonetheless recommended dismissal of this action because plaintiff has yet to respond to the order 21 to show cause itself, defendants’ motion to compel discovery responses, and due to the repeated 22 lack of or inadequacy of plaintiff’s responses to discovery requests, motions and court orders. 23 (Doc. No. 78 at 2.) The court is also unpersuaded by plaintiff’s objection that defendants have 24 provided no evidence that he refused mail, and “[f]urther, every other piece of mail was given to 25 26 27 28 Plaintiff has attached to his objections an undated letter in which a “Tony C” explains that his license had been suspended for several years, and that he would be unable to represent plaintiff. (Doc. No. 81 at 16–17.) The undersigned notes that an attorney search on the State Bar of California’s website does reveal a consumer alert that an attorney named Anthony Contreras is suspended from practicing law and has been placed on involuntary inactive status. 3 2 1 [plaintiff] along with the ‘same’ discovery request.” (Doc. No. 81 at 2.) Indeed, defendants 2 attached the envelope annotated “Inmate” and “Refused Mail” to their motion to compel (see 3 Doc. No. 69, Ex. A), and plaintiff concedes that he received that motion. While acknowledging 4 that he has received all of his mail, plaintiff still he has yet to explain his repeated failure to 5 respond to defendants’ discovery request. Finally, plaintiff contends that he mailed a response to 6 the court’s order to show cause on July 3, 2020 (Doc. No. 81 at 4), but he has submitted no 7 evidence in support of this conclusory assertion. Even if plaintiff did mail a response to the 8 court’s order to show cause on the date he claims, that response would have been untimely by 9 thirty days. This further supports the magistrate judge’s conclusion that “Plaintiff’s repeated 10 failure to follow this Court’s orders and to prosecute this case that is causing delay.” (Doc. No. 11 78 at 4.) 12 In sum, the undersigned agrees that consideration of the relevant factors in determining 13 whether to dismiss for failure to prosecute and/or failure to comply with a court order ultimately 14 weigh in favor of dismissal of this action. (See Doc. No. 78 at 3–4); Pagtalunan v. Galaza, 291 15 F.3d 639, 642 (9th Cir. 2002). Contrary to plaintiff’s assertion that these circumstances were 16 completely out of his control (Doc. No. 81 at 9), as explained above, the undersigned is not 17 persuaded that this was the case. 18 Accordingly: 19 1. 20 21 adopted in full; 2. 22 23 26 27 Plaintiff’s request for extension of time to submit evidence in support of his objections (Doc. No. 81) is denied; 3. 24 25 The findings and recommendations issued on July 2, 2020 (Doc. No. 78) are This case is dismissed, without prejudice, due to plaintiff’s failure to prosecute and failure to comply with court orders; and 4. The Clerk of Court is directed to close this case. IT IS SO ORDERED. Dated: January 2, 2021 UNITED STATES DISTRICT JUDGE 28 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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