King v. McDonald et al

Filing 53

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/30/12 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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JESSE KING,

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Plaintiff,

No. 2:10-cv-2797 JAM DAD P

vs.

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MIKE McDONALD, et al.,

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Defendants.

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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 February 3, 2012, defendants filed a motion for summary judgment. On

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May 19, 2011, the court advised plaintiff of the requirements for opposing a motion pursuant to

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Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th

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Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). In that

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

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

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motion.

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On June 7, 2012, plaintiff was ordered to file an opposition or a statement of non-

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opposition to the pending motion within thirty days. In the same order, plaintiff was informed

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that failure to file an opposition would result in a recommendation that this action
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be dismissed pursuant to Fed. R. Civ. P. 41(b). The thirty day period has now expired and

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plaintiff has not responded in any way 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 two years and has

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reached the stage, set by the court’s July 28, 2011 scheduling order, for resolution of dispositive

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

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Order, filed July 28, 2011.) Plaintiff’s failure to comply with the Local Rules and the court’s

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June 7, 2012 order suggests that he has abandoned this action and that further time spent by the

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court thereon will consume scarce judicial resources in addressing litigation which plaintiff

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demonstrates no intention to pursue.

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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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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 supra, the first, second, and fifth factors strongly support dismissal and the third

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

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the general public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at

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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: July 30, 2012.

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DAD:12
king2797.46fr

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