Henderson v. Tseng, et al.

Filing 24

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 04/21/15 ORDERING the Clerk to randomly assign a District Judge to this matter; case assigned to District Judge Troy L. Nunley; new case number is 2:13-cv-0344 TLN DAD (P). And RECOMMENDING that this matter be dismissed. Referred to Judge Troy L. Nunley; Objections to F&Rs due within 14 days. (Benson, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TOMMY HENDERSON,

12

No. 2:13-cv-0344 DAD P

Plaintiff,

13

v.

14

S. TSENG et al.,

15

ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendant.

16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

18

action brought pursuant to 42 U.S.C. § 1983. For the reasons discussed herein, the court will

19

recommend that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

20

BACKGROUND

21

On January 23, 2015, counsel on behalf of defendant Dr. Tseng filed a motion for

22

summary judgment, arguing that plaintiff could not present evidence establishing that the

23

defendant was deliberately indifferent to plaintiff‟s medical needs and that plaintiff had failed to

24

exhaust his administrative remedies prior to filing suit as required. (Doc. No. 22) Plaintiff had

25

not opposed the motion, so on March 6, 2015, this court issued an order to show cause. (Doc. No.

26

23) In the order, the court ordered plaintiff to file an opposition to defendant‟s motion for

27

summary judgment within thirty days and warned plaintiff that failure to do so would result in a

28

/////
1

1

recommendation that this action be dismissed. (Id.) That thirty-day period has now expired.

2

Nonetheless, plaintiff still has not filed any opposition to that motion.

3

DISCUSSION

4

“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

5

action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

6

1260 (9th Cir. 1992). In Ferdik, the Ninth Circuit Court of Appeals held that the district court did

7

not abuse its discretion when it dismissed a pro se litigant‟s civil rights action for failing to file an

8

amended complaint. The court explained that, in deciding whether to dismiss a case for a

9

litigant‟s failure to comply with a court order, the district court must weigh five factors:
“(1) the public‟s interest in expeditious resolution of litigation; (2)
the court‟s need to manage its docket; (3) the risk of prejudice to
the defendants; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic alternatives.”

10
11
12
13

Id. at 1260-61 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.3d 829, 831 (9th

14

Cir. 1986).

15

In this case, the first two factors as well as the fifth factor cited by the court in Ferdik

16

strongly support dismissal of this action. This case has been pending before the court since

17

February 21, 2013, and has reached the summary judgment stage of the litigation. Plaintiff‟s

18

failure to comply with court orders and the Local Rules strongly suggests that further time spent

19

by the court on this case will consume scarce judicial resources in addressing litigation which

20

plaintiff has demonstrated he has no intention to diligently pursue. Notably, the court specifically

21

warned plaintiff in its March 6, 2015, order to show cause that any failure on his part to file an

22

opposition to defendant‟s motion for summary judgment would result in a recommendation that

23

this action be dismissed. Inexplicably, plaintiff has still not filed any opposition to defendant‟s

24

motion as required nor has he responded to the court‟s order to show cause in any way. Under

25

these circumstances, there is no suitable less drastic alternative to dismissal of this case.

26

The third factor, the risk of prejudice to defendant Dr. Tseng, also weighs in favor of

27

dismissal. Plaintiff‟s failure to oppose the defendant‟s motion for summary judgment prevents

28

the defendant from addressing plaintiff‟s claims and unnecessarily delays resolution of this action
2

1

thereby forcing the defendant to incur additional time and expense. See In re Eisen, 31 F.3d

2

1447, 1452-53 (9th Cir. 1994) (“When considering prejudice to the defendant, „the failure to

3

prosecute diligently is sufficient by itself to justify dismissal, even in the absence of a showing of

4

actual prejudice to the defendant from the failure…. The law presumes injury from unreasonable

5

delay.‟”) (quoting Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976)).

6

Finally, the fourth factor, public policy favoring disposition of cases on the merits, weighs

7

against dismissal of this action. However, for the reasons set forth above, the first, second, third,

8

and fifth factors support dismissal. Under the circumstances of this case, those factors outweigh

9

the general public policy favoring disposition of cases on their merits.

10
11
12
13
14

CONCLUSION
IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a
United States District Judge to this action.
IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule
of Civil Procedure 41(b).

15

These findings and recommendations are submitted to the United States District Judge

16

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

17

after being served with these findings and recommendations, any party may file written

18

objections with the court and serve a copy on all parties. Such a document should be captioned

19

“Objections to Magistrate Judge‟s Findings and Recommendations.” Any reply to the objections

20

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

21

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

22

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

23

Dated: April 21, 2015

24
25
26

DAD:9
hend0344.57

27
28
3