Little v. Marciano et al

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/31/2012 RECOMMENDING that this action be dismissed pursuant to F.R.Civ.P. 41(b). Referred to Judge John A. Mendez; Objections due within 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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DEMETRIC LITTLE,

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Plaintiff,

No. 2:10-cv-2490 JAM DAD (PC)

vs.
P.A. C. MARCIANO, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On November 21, 2011, defendants filed a motion to dismiss this action as a

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sanction for plaintiff’s failure to comply with a court order and to participate in discovery. On

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February 14, 2011, the court advised plaintiff of the requirements for opposing a discovery

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motion and a motion pursuant to Rule 41 of the Federal Rules of Civil Procedure and that his

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failure to oppose such a motion might be deemed a waiver of opposition to the motion.

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On December 22, 2011, plaintiff was ordered to file an opposition or a statement

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of non-opposition to the pending motion to dismiss within thirty days. In the same order,

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plaintiff was informed that his failure to file an opposition would result in a recommendation that

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this action be dismissed pursuant to Fed. R. Civ. P. 41(b). The thirty day period has now expired

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and plaintiff has not responded to the court’s order.
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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 almost eighteen months. The

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deadline set in the court’s May 19, 2011 scheduling order for completion of discovery has

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passed, and the time for filing dispositive motions, as extended by the court’s October 4, 2011

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order, is only approximately a month and a half away. Plaintiff’s failure to comply with the

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Local Rules and the court’s December 22, 2011, order suggests that he has abandoned this civil

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action and that further time spent by the court thereon will consume scarce judicial resources in

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addressing litigation which plaintiff demonstrates no intention to pursue.

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Consideration of the fifth Ferdik factor also favors dismissal. The court has

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advised plaintiff of the requirements under the Local Rules and granted ample additional time to

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oppose the pending motion, all to no avail. The court finds no suitable alternative to dismissal of

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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 Ferdik, 963

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F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to
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continue an action plaintiff has abandoned. The fourth factor, public policy favoring disposition

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of cases on their merits, weighs against dismissal of this action as a sanction. However, for the

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reasons set forth above, the first, second, and fifth factors strongly support dismissal and the third

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factor does not mitigate against dismissal. Under the circumstances of this case, those factors

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outweigh the general public policy favoring disposition of cases on their merits. See Ferdik, 963

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F.2d at 1263.

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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 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: January 31, 2012.

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DAD:12
litt2490.46fr

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