Williams v. Agredano, et al.

Filing 30

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/12/2016 VACATING defendants' 26 motion for summary judgment; and RECOMMENDING this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LONNIE WILLIAMS,

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No. 2:15-cv-1767 JAM KJN P

Plaintiff,
v.
R. AGREDANO, et al.,

ORDER & 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 19, 2016, defendants filed a motion for summary judgment on

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grounds that plaintiff failed to exhaust administrative remedies. (ECF No. 26.) On October 29,

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2015, the court advised plaintiff of the requirements for opposing a motion for summary

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judgment based on plaintiff’s failure to exhaust administrative remedies pursuant to Rule 56 of

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the Federal Rules of Civil Procedure. (ECF No. 13.) See Rand v. Rowland, 154 F.3d 952, 957

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

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On August 24, 2016, plaintiff was ordered to file an opposition or a statement of non-

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opposition to the pending motion within thirty days. (ECF No. 28.) In that same order, plaintiff

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was advised of the requirements for filing an opposition to the pending motion and that failure to

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oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b)

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action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to
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comply with these rules and a court order. Plaintiff was also informed that failure to file an

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

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of the Federal Rules of Civil Procedure.

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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). “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 one year and has reached the stage, set by the

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court’s February 3, 2016 scheduling order, for resolution of dispositive motions and, if necessary,

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preparation for pretrial conference and jury trial. (See Scheduling Order, filed February 3, 2016

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(ECF No. 19).) Plaintiff’s failure to comply with the Local Rules and the court’s August 24,

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2016 order suggests that she has abandoned this action and that further time spent by the court

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thereon will consume scarce judicial resources in addressing litigation which plaintiff

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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.
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 above, 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 ORDERED that defendants’ summary
judgment motion (ECF No. 26) is vacated; and
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: October 12, 2016

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Will1767.fr

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