Gonzales v. McDonald

Filing 23

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/12/2013 ORDERING the Clerk shall assign a district judge to this case; and RECOMMENDING that this action be dismissed without prejudice pursuant to F.R.Civ.P. 41(b). Assigned and Referred to Judge John A. Mendez; Objections due within 21 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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MARK ANTHONY GONZALES,

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Plaintiff,

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vs.

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No. 2:12-cv-1035 KJN P

M. McDONALD,

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Defendant.

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ORDER AND
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 November 28, 2012, defendant filed a motion to dismiss based

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on plaintiff’s alleged failure to exhaust administrative remedies prior to filing the instant action.

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On August 9, 2012, plaintiff was advised of the requirements for opposing a motion to dismiss

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for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of

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Civil Procedure. See Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); Woods v.

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Carey, 684 F.3d 934 (9th Cir. 2012).

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On January 9, 2013, plaintiff was ordered to file an opposition or a statement of

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

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

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a motion would be deemed as consent to have the: (a) pending motion granted; (b) action
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dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply

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with these rules and a court order. Plaintiff was also informed that failure to file an opposition

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

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Federal Rules of Civil Procedure.

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The sixty day period expired on April 1, 2013, 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 one year. Plaintiff’s

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failure to comply with the Local Rules and the court’s January 31, 2013 order suggests that he

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has abandoned this action and that further time spent by the court thereon will consume scarce

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judicial resources in addressing litigation which plaintiff demonstrates no 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

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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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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to
assign a district judge to this case; and

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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 twenty-

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one 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: April 12, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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gonz1035.46fr

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