Quair v. Gertz

Filing 52

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/1/2013 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, 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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SAMMY R. QUAIR, SR.,

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Plaintiff,

No. 2:11-cv-2293 JAM CKD P

Defendants.

FINDINGS AND RECOMMENDATIONS

vs.
GERTZ,

/
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 September 12, 2012, defendants filed a motion for summary

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judgment. (Dkt. No. 44.) On September 18, 2012, the court advised plaintiff of the

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requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure.

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See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.

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

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On October 30, 2012, 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 that failure to oppose such a motion would result in a recommendation that this action be

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dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Dkt. No. 47.) On

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December 6, 2012, plaintiff was granted a forty-five day extension of time to file and serve his
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opposition. (Dkt. No. 49.) The forty-five day period has now expired and plaintiff has not filed

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an opposition or otherwise 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 since August 2011 and has reached

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the stage, set by the court’s February 17, 2012 scheduling order, for resolution of dispositive

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motions and, if necessary, preparation for pretrial conference and jury trial. (See Dkt. No. 32.)

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Plaintiff’s failure to comply with the Local Rules and the court’s December 6, 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. Plaintiff’s failure to oppose

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the motion prevents defendants from addressing plaintiff’s substantive opposition, and would

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delay resolution of this action, thereby causing defendants to incur additional time and expense.

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The fifth factor also favors dismissal. The court has advised plaintiff of the
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.
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).
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 reply to the objections

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

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

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

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Dated: February 1, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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quai2293.nooppo.msj.fr.kjn

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