Jimenez v. Horel

Filing 72

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 09/05/12 recommending that this action be dismissed without prejudice pursuant to FRCP 41(b). Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, 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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ROBERT CHRISTOPHER JIMENEZ,

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Plaintiff,

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vs.

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No. 2:10-cv-2943 KJM KJN P

J. WHITFIELD,

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Defendant.

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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 June 11, 2012, defendant Whitfield filed a motion for

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summary judgment. On July 24, 2012, the court advised plaintiff of the requirements for

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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v.

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Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409,

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411-12 (9th Cir. 1988).

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On July 24, 2012, plaintiff was also ordered to file an opposition or a statement of

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non-opposition to the pending motion within thirty days. In that same order, plaintiff was

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advised of the requirements for filing an opposition to the pending motion and that failure to

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oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b)

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action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to
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comply with these rules and a court order. Plaintiff was also informed that failure to file an

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opposition would result in a recommendation that this action be dismissed pursuant to Rule 41(b)

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of the Federal Rules of Civil Procedure.

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The thirty day period has now expired 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 over two years and nine

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months, and has reached the stage, set by the court’s April 26, 2012 scheduling order,1 for

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resolution of dispositive motions and, if necessary, preparation for pretrial conference and jury

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trial. (See Scheduling Order, filed April 26, 2012.) Plaintiff’s failure to comply with the Local

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Rules and the court’s July 24, 2012 order suggests that he has abandoned this action and that

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further time spent by the court thereon will consume scarce judicial resources in addressing

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litigation which plaintiff demonstrates no intention to pursue.

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The June 24, 2011 scheduling order was vacated due to the pendency of the motion for
judgment on the pleadings. (Dkt. No. 41.)
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Under the circumstances of this case, the third factor, prejudice to defendant from

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plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the

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motion prevents defendant from addressing plaintiff’s substantive opposition, and would delay

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resolution of this action, thereby causing defendant to incur 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: September 5, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jime2943.46f

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