Baker et al v. Cameron et al

Filing 68

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/17/12 recommending that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Kimberly J. Mueller; 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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JERRY W. BAKER,

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Plaintiff,

No. 2:10-cv-1811 KJM KJN P

vs.

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SOLANO COUNTY, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. On October 11, 2012, defendants filed a motion for summary

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judgment, and provided plaintiff with a separate notice of the requirements for opposing a

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motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154

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F.3d 952, 957 (9th Cir. 1998) (en banc). (Dkt. No. 64-1.)

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Plaintiff did not file an opposition. On November 16, 2012, plaintiff was ordered

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to file an opposition or a statement of non-opposition to the pending motion within thirty days.

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In that same order, plaintiff was advised of the requirements for filing an opposition to the

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pending motion and that failure to oppose such a motion would be deemed as consent to have

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the: (a) pending motion granted; (b) action dismissed for lack of prosecution; and (c) action

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dismissed based on plaintiff’s failure to comply with these rules and a court order. Plaintiff was
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also informed that failure to file an opposition would result in a recommendation that this action

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be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiff did not

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file an opposition or otherwise respond to the November 16, 2012 order. On December 10, 2012,

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defendants’ counsel filed a declaration noting plaintiff’s failure to file a timely opposition.

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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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In determining to recommend that this action be dismissed, the court has

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considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly

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support dismissal of this action. The action has been pending for two years and five months, and

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has reached the stage, set by the court’s February 11, 2011 scheduling order, for resolution of

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dispositive motions and, if necessary, preparation for pretrial conference and jury trial. (Dkt. No.

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20.) Plaintiff’s failure to comply with the Local Rules and the court’s November 16, 2012 order

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suggests that he has abandoned this action, and that further time spent by the court thereon will

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consume scarce judicial resources in addressing litigation which plaintiff demonstrates no

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intention to pursue.

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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, also favors dismissal. Defendants’ renewed motion

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for summary judgment has been pending for over two months. However, defendants’ prior

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motion for summary judgment was filed on December 5, 2011, over one year ago. Plaintiff’s
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failure to oppose the motion prevents defendants from addressing plaintiff’s substantive

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opposition, and would delay resolution of this action, thereby causing defendants to incur

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additional time and expense.

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

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requirements under the Local Rules and granted ample additional time to oppose the pending

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

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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 supra,

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the first, second, third, and fifth factors strongly support dismissal. Under the circumstances of

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this case, those factors outweigh the general public policy favoring disposition of cases on their

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merits. See Ferdik, 963 F.2d at 1263.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be
dismissed without prejudice 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 response to the

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

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

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

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DATED: December 17, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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/bake1811.46fr2

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