Mitchell v. Snowden et al

Filing 98

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/29/12 RECOMMENDING that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JEROME MITCHELL,

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Plaintiff,

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vs.

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No. 2: 08-cv-1658 JAM DAD P

SNOWDEN, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action filed

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pursuant to 42 U.S.C. § 1983. On June 8, 2012, defendants filed a motion for summary

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judgment. (See Dkt. No. 81.) Plaintiff sought and received three extensions of time to file a

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response to defendants’ summary judgment motion. With the extensions of time that plaintiff

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received, his response to defendants’ motion for summary judgment was due on October 12,

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2012. In a document dated September 23, 2012, plaintiff indicated that he would be submitting

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his opposition to defendants’ summary judgment motion on September 28, 2012. (See Dkt. No.

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92 at p. 2.) To date, the court has not received plaintiff’s response to the summary judgment

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motion which is now past due.

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On March 8, 2010 and again on July 20, 2012, plaintiff was advised of the
requirements for filing an opposition to a summary judgment motion and that failure to oppose
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such a motion might be deemed a waiver of opposition to the motion.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss

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an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

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court order the district court must weigh five factors including: ‘(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting

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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir. 1995).

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The court has considered the five factors set forth in Ferdik. The first two factors

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strongly support dismissal of this action. The action has been pending for over four years and

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has reached the stage, set by the court’s December 22, 2011 scheduling order, for resolution of

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dispositive motions, and, if necessary, preparation for pretrial conference and jury trial. (See

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Dkt. No. 71.)

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The fifth factor also favors dismissal. The court advised plaintiff of the Local

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Rules and granted plaintiff three extensions of time to oppose the motion for summary judgment,

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all to no avail. The court finds no suitable alternative to dismissal of this action.

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Under the circumstances of this case, the third factor, prejudice to defendants

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from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to

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oppose the motion does not put defendants at any disadvantage in this action. See Fedrik, 963

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F.2d at 1262. The defendants would only be “disadvantaged” by a decision to continue this

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action where plaintiff has failed to file an opposition to the motion for summary judgment.

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The fourth factor, public policy favoring disposition of cases on their merits,

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weighs against dismissal of this action as a sanction. However, for the reasons set forth above,

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the first, second and fifth factors strongly support dismissal and the third factor does not mitigate
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against it. Under the circumstances of this case, those factors outweigh the general public policy

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favoring disposition of cases on their merits.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be
dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 29, 2012.

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DAD:dpw
mitc1658.46fr

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