Jackson v. Austin et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/15/16 RECOMMENDING that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LAWRENCE JACKSON,
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No. 2:14-cv-0592 KJM KJN P
Plaintiff,
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v.
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J. AUSTIN, et al.,
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FINDINGS & RECOMMENDATIONS
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 July 17, 2015, the sole remaining defendant Austin filed a motion for
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summary judgment.1 Plaintiff did not file an opposition. On September 1, 2015, plaintiff was
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granted an extension of time to file an opposition, reminded of his obligations under Local Rules
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110 and 230(l), and warned that his failure to file an opposition would be deemed as consent to
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have the
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(a) action dismissed for lack of prosecution; and (b) action
dismissed based on plaintiff’s failure to comply with these rules and
a court order. Such failure shall result in a recommendation that this
action be dismissed pursuant to Federal Rule of Civil Procedure
41(b).
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(ECF No. 35 at 1-2.) Plaintiff was provided the text of Rule 41(b). (ECF No. 35 at 2.)
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On January 12, 2015, the other named defendants were dismissed without prejudice.
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On October 5, 2015, plaintiff filed an unverified five page document entitled “Opposition
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of Summary Judgment.” (ECF No. 36.) However, on December 2, 2015, the undersigned
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construed plaintiff’s “opposition” as a request for additional discovery pursuant to Rule 56(d) of
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the Federal Rules of Civil Procedure. (ECF No. 38.) Plaintiff’s request for relief under Rule
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56(d) was denied, but plaintiff was granted one final thirty day extension of time in which to file
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an opposition. (ECF No. 38 at 4.) Plaintiff was reminded of the requirements for opposing a
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motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154
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F.3d 952, 957 (9th Cir. 1998) (en banc). (ECF No. 38 at 4.) Plaintiff was previously informed of
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such requirements on several occasions. (ECF Nos. 21 at 3-4, 6; 30-1; 35.)
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The thirty day period has now expired 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 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); ); see also Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). “In
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determining whether to dismiss a case for failure to comply with a court order the district court
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must weigh five factors including: ‘(1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. Housing Auth., 782 F.2d 829,
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831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 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. “[T]he public’s interest in expeditious resolution of litigation always favors
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dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This action has
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been pending for almost two years, and has reached the stage, set by the court’s January 21, 2015
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scheduling order, for resolution of dispositive motions. (ECF No. 27.) “It is incumbent upon the
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Court to manage its docket without being subject to routine noncompliance of litigants. . . .”
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Pagtalunan, 291 F.3d at 642. Plaintiff’s failure to comply with the Local Rules and the court’s
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orders suggests that further time spent by the court thereon will consume scarce judicial resources
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in addressing litigation which plaintiff demonstrates no intention to pursue.
Under the circumstances of this case, the third factor, prejudice to defendant 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 defendant 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: January 15, 2016
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