Salado v. Sisto et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/14/2011 RECOMMENDING that plaintiff's claims against defendant Rice be dismissed without prejudice pursuant to 41(b) 15 . Referred to Judge Lawrence K. Karlton; 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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MARTIN SALCIDO,
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Plaintiff,
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vs.
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No. 2:11-cv-0611 LKK KJN P
D.K. SISTO, et al.,
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Defendants.
FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel. On July 19, 2011,
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defendants filed a motion to dismiss plaintiff’s civil rights complaint pursuant to Rule 12(b)(6) of
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the Federal Rules of Civil Procedure. On May 20, 2011, the court advised plaintiff that motions
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to dismiss shall be briefed pursuant to Local Rule 230(l). (Dkt. No. 10.)
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On August 24, 2011, plaintiff was 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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plaintiff’s claims against defendant Rice dismissed for lack of prosecution. In the same order,
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plaintiff was informed that failure to file an opposition would result in a recommendation that
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defendant Rice’s motion to dismiss be granted.
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On September 27, 2011, the court granted plaintiff an additional 28 days in which
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to file an opposition to defendant Rice’s motion to dismiss. (Dkt. No. 17.) On October 12, 2011,
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the September 27, 2011 order was re-served on plaintiff at his address of record.
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Twenty-eight days from October 12, 2011 have now passed, 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 eight months. Plaintiff’s
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failure to comply with the Local Rules and the court’s August 24, 2011 and September 27, 2011
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orders suggests that he has abandoned this action and that further time spent by the court thereon
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will 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. Plaintiff’s failure to oppose
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the motion prevents defendant Rice from addressing plaintiff’s substantive opposition, and
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would delay resolution of this action, thereby causing defendant Rice to incur additional time and
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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 plaintiff’s
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claims against defendant Rice be dismissed without prejudice pursuant to Federal Rule of Civil
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Procedure 41(b). (Dkt. No. 15.)
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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: November 14, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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salc0611.46fr
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