Armstrong v. Garcia et al

Filing 99

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 4/29/2010 ORDERING that plaintiff's 96 request for an extension of time is DENIED. It is RECOMMENDED that this action be dismissed. Objections due within 21 days after being served with these findings and recommendations.(Duong, D)

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 vs. SILVEA GARCIA, et al., Defendants. / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On March 16, 2010, plaintiff was ordered to file oppositions to three outstanding motions to dismiss within thirty days. The first motion to dismiss was filed on July 30, 2009, the second on December 8, 2009, and a third on January 22, 2010. Each motion implicates the law of exhaustion, and argues that plaintiff has not exhausted the administrative grievance process with respect to his claims. The motions also argue plaintiff fails to state claims that can proceed in this action, or that he seeks relief not available in this action. In this courts March 16 order, plaintiff was informed that failure to file oppositions would result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). The thirty day period has now expired and plaintiff has not filed his oppositions. ///// 1 ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BRADY K. ARMSTRONG, Plaintiff, No. CIV-S-08-0039 FCD KJM P

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I. Request For Extension Of Time What plaintiff has filed is another request for an extension of time to file his oppositions. He asserts, as he has many times before, that he cannot write so he requires time to find someone to write for him. As the court noted in the order of March 16, 2010, plaintiff has filed numerous motions and requests, now totaling 18, since defendants' first motion to dismiss was filed. Most of these documents are handwritten and are at least three pages long. In the March 16 order, the court indicated the record reflects that plaintiff can complete oppositions to the pending motions to dismiss despite plaintiff's claims that he cannot; the court granted plaintiff one final extension of time to do so. With respect to the motion to dismiss filed July 30, 2009, plaintiff has had nearly nine months to complete an opposition. He has had sufficient time to respond to each subsequent motion filed as well. In light of these facts, the court does not find good cause to grant plaintiff's pending request for an extension of time. II. Dismissal Standards "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." 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. 1995). In 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 over two years, and the first 2

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motion to dismiss for nearly nine months, as noted. The second motion has been pending now for more than four months, and the third for more than three months. Under the circumstances of this case, the third factor, prejudice to defendants from plaintiff's failure to oppose the motion, should be given little weight. Plaintiff's failure to oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963 F.2d at 1262. Indeed, defendants would only be "disadvantaged" by a decision by the court to continue an action plaintiff is declining to litigate with any diligence despite the court's indulgence. Defendants' opposition to plaintiff's most recent request for extension of time is an indication of their interest in a prompt resolution of the motions pending. The fifth factor also favors dismissal. The court has granted plaintiff ample additional time to oppose the pending motions, and warned plaintiff of the risk of dismissal, to no avail. Cf. Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (evaluating whether or not there has been a "warning of imminent dismissal of the case" prior to sua sponte dismissal). The court finds it has exhausted less drastic alternatives to dismissal of this action. The fourth factor, public policy favoring disposition of cases on their merits, weighs against dismissal of this action as a sanction. For the reasons set forth above, however, the first, second, and fifth factors strongly support dismissal and the third factor does not mitigate against it. 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. For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's request for an extension of time (#96) is denied; and IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). These 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)(l). Within twentyone days after being served with these findings and recommendations, any party may file written 3

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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 seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 29, 2010.

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