Kelley v. Grass Valley Police Department et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/12/2011 RECOMMENDING that this action be dismissed pursuant to F.R.Civ.P. 41(b). Referred to Judge Lawrence K. Karlton; Objections due w/in 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISAAC KELLEY,

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Plaintiff,

No. CIV S-09-1679 LKK DAD P

vs.
GRASS VALLEY POLICE
DEPARTMENT, et al.,

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FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983.
On June 17, 2011, defendants Gammelgard, Clinkinbeard, and Shoberg filed a

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motion for summary judgment, arguing that they are entitled to judgment in their favor as a

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matter of law on plaintiff’s excessive use of force claims. Plaintiff failed to file a timely

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opposition to the motion. Accordingly, on July 26, 2011, the court issued an order to show

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cause. In that order, the court advised plaintiff that his failure to file a written opposition or file a

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statement of no opposition could be deemed a waiver of any opposition to the granting of

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defendants’ motion. The court also reminded plaintiff that on August 26, 2010, the court

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instructed him on how to file an opposition to a motion for summary judgment. Plaintiff was

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granted twenty-one days to comply with the court’s order and file an opposition to defendants’
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motion. That period has now passed, and plaintiff still has not filed an opposition or otherwise

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responded to the court’s order. Accordingly, for the reasons discussed herein, the court

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recommends that this action be dismissed for failure to prosecute.

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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 Ferdik, the Ninth Circuit Court of Appeals held that the district court

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did not abuse its discretion when it dismissed a pro se litigant’s civil rights action for failing to

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file an amended complaint. The court explained that, in deciding whether to dismiss a case due

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to a litigant’s failure to comply with a court order, the district court must weigh five factors:

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“(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.”

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Id. at 1260-61 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.3d 829, 831 (9th

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Cir. 1986).

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In this case, the first two factors as well as the fifth factor cited by the court in

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Ferdik strongly support dismissal. This case has been pending since May 21, 2009, and has

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reached the summary judgment stage. Plaintiff’s failure to comply with court orders and the

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Local Rules strongly suggests that further time spent by the court on this case will consume

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scarce judicial resources in addressing litigation which plaintiff demonstrates little intention to

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diligently pursue. In addition, the court warned plaintiff in its order to show cause that failure to

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file an opposition to the pending motion would result in a recommendation that this action be

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dismissed. In this regard, there is no suitable less drastic alternative to dismissal of this action.

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The third factor, the risk of prejudice to the defendants, also weighs in favor of

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dismissal. Plaintiff’s failure to oppose defendants’ motion for summary judgment prevents them

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from addressing plaintiff’s claims on the merits and unnecessarily delays resolution of this action

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thereby forcing defendants to incur additional time and expense.
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Finally, the fourth factor, public policy favoring disposition of cases on the merits,

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weighs against dismissal of this action. However, for the reasons set forth above, the first,

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second, third, and fifth factors support dismissal. Under the circumstances of this case, those

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factors outweigh the general public policy favoring disposition of cases on their merits.

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Accordingly, 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 seven 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 12, 2011.

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DAD:9
kell1679.ftp

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