United States District Court, E.D. California
P FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. On May 10,
2019, defendants filed a motion for summary judgment on the
grounds that plaintiff failed to exhaust administrative
remedies. On October 3, 2018, the court advised plaintiff of
the requirements for opposing a motion for summary judgment
based on plaintiff's failure to exhaust administrative
remedies pursuant to Rule 56 of the Federal Rules of Civil
Procedure. See Rand v. Rowland, 154 F.3d 952, 957
(9th Cir. 1998) (en banc), and Klingele v.
Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
August 1, 2019, plaintiff was ordered to file an opposition
or a statement of non-opposition to the pending motion within
thirty days. In that same order, plaintiff was advised of the
requirements for filing an opposition to the pending motion
and that failure to oppose such a motion would be deemed as
consent to have the: (a) pending motion granted; (b) action
dismissed for lack of prosecution; and (c) action dismissed
based on plaintiff's failure to comply with these rules
and a court order. Plaintiff was also informed that failure
to file an opposition would result in a recommendation that
this action be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
thirty days period has now expired and plaintiff has not
responded to the court's order.
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.” Ferdik v. Bonzelet, 963 F.2d 1258,
1260 (9th Cir. 1992). “In determining whether to
dismiss a case for failure to comply with a court order the
district court must weigh five factors including: ‘(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; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic alternatives.'”
Ferdik, 963 F.2d at 1260-61 (quoting Thompson v.
Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986));
see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
determining to recommend that this action be dismissed, the
court has considered the five factors set forth in
Ferdik. Here, as in Ferdik, the first two
factors strongly support dismissal of this action. The action
has been pending for one year and has reached the stage for
resolution of the issue of administrative exhaustion.
Plaintiff's failure to comply with the Local Rules and
the court's August 1, 2019 order suggests that he has
abandoned this action and that further time spent by the
court thereon will consume scarce judicial resources in
addressing litigation which plaintiff demonstrates no
intention to pursue.
the circumstances of this case, the third factor, prejudice
to defendants from plaintiff's failure to oppose the
motion, also favors dismissal. Plaintiff's failure to
oppose the motion prevents defendants from addressing
plaintiff's substantive opposition, and would delay
resolution of this action, thereby causing defendants to
incur additional time and expense.
fifth factor also favors dismissal. The court has advised
plaintiff of the requirements under the Local Rules and
granted ample additional time to oppose the pending motion,
all to no avail. The court finds no suitable alternative to
dismissal of this action.
fourth factor, public policy favoring disposition of cases on
their merits, weighs against dismissal of this action as a
sanction. However, for the reasons set forth supra, the
first, second, third, and fifth factors strongly support
dismissal. Under the circumstances of this case, those
factors outweigh the general public policy favoring
disposition of cases on their merits. See Ferdik,
963 F.2d at 1263.
foregoing reasons, IT IS HEREBY RECOMMENDED that this action
be dismissed without prejudice pursuant to Federal Rule of
Civil Procedure 41(b).
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
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.” Any response
to the objections shall be filed and served within fourteen
days after service of the objections. The parties are advised
that failure to file ...