Cida v. Lee et al

Filing 52

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/1/2018 RECOMMENDING this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADRIAN CIDA,

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No. 2:13-cv-2289 MCE KJN P
Plaintiff,

v.

FINDINGS & RECOMMENDATIONS

BONNIE LEE, M.D., et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On November 20, 2017, defendants filed a motion for summary judgment.

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On January 10, 2018, plaintiff was granted an extension of time up to and including February 11,

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2018, to file an opposition. Plaintiff did not file an opposition. On February 21, 2018, petitioner

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was granted an additional fourteen days in which to file an opposition, and warned that failure to

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oppose the motion would result in the dismissal of this action. (ECF No. 49.) On March 13,

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2018, petitioner was granted until April 11, 2018, in which to file his opposition, noting that by

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then, petitioner would have had almost five months in which to prepare and file his opposition.

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(ECF No. 51 at 1.) Petitioner has again failed to file an opposition.

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On January 20, 2017, the court advised plaintiff of the requirements for opposing a motion

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pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d

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952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.
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1988). On November 20, 2017, defendants provided plaintiff with contemporaneous notice of

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such requirements. (ECF No. 44-3.)

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On February 21, 2018, plaintiff was advised of the requirements for filing an opposition to

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the pending motion and that failure to oppose such a motion would be deemed as consent to have

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the: (a) pending motion granted; (b) action dismissed for lack of prosecution; and (c) action

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dismissed based on plaintiff’s failure to comply with these rules and a court order. Plaintiff was

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also informed that failure to file an opposition would result in a recommendation that this action

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be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
The April 11, 2018 deadline has now expired and plaintiff has not responded to the court’s

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order.

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

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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 considered the

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five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal

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of this action. The action has been pending for over four years and five months, and has reached

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the stage, set by the court’s September 8, 2017 scheduling order, for resolution of dispositive

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motions and, if necessary, preparation for pretrial conference and jury trial. (ECF No. 43.)

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Plaintiff’s failure to comply with the Local Rules and the court’s multiple orders 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 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 defendants from addressing plaintiff’s substantive opposition, and would delay

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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

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under the Local Rules and granted ample additional time to oppose the pending motion, all to no

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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, weighs

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against dismissal of this action as a sanction. However, for the reasons set forth supra, the first,

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second, third, and fifth factors strongly support dismissal. Under the circumstances of this case,

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those factors outweigh the general public policy favoring disposition of cases on their merits. See

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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 Judge

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

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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: May 1, 2018

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/cida2289.nop.fr

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