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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LONNIE WILLIAMS, 12 13 14 15 No. 2:15-cv-1767 JAM KJN P Plaintiff, v. R. AGREDANO, et al., ORDER & FINDINGS & RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On July 19, 2016, defendants filed a motion for summary judgment on 19 grounds that plaintiff failed to exhaust administrative remedies. (ECF No. 26.) On October 29, 20 2015, the court advised plaintiff of the requirements for opposing a motion for summary 21 judgment based on plaintiff’s failure to exhaust administrative remedies pursuant to Rule 56 of 22 the Federal Rules of Civil Procedure. (ECF No. 13.) See Rand v. Rowland, 154 F.3d 952, 957 23 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 24 On August 24, 2016, plaintiff was ordered to file an opposition or a statement of non- 25 opposition to the pending motion within thirty days. (ECF No. 28.) In that same order, plaintiff 26 was advised of the requirements for filing an opposition to the pending motion and that failure to 27 oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b) 28 action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to 1 1 comply with these rules and a court order. Plaintiff was also informed that failure to file an 2 opposition would result in a recommendation that this action be dismissed pursuant to Rule 41(b) 3 of the Federal Rules of Civil Procedure. 4 The thirty day period has now expired and plaintiff has not responded to the court’s order. 5 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 6 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 7 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 8 court order the district court must weigh five factors including: ‘(1) the public's interest in 9 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 10 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 11 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 12 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 13 F.3d 52, 53 (9th Cir. 1995). 14 In determining to recommend that this action be dismissed, the court has considered the 15 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal 16 of this action. The action has been pending for one year and has reached the stage, set by the 17 court’s February 3, 2016 scheduling order, for resolution of dispositive motions and, if necessary, 18 preparation for pretrial conference and jury trial. (See Scheduling Order, filed February 3, 2016 19 (ECF No. 19).) Plaintiff’s failure to comply with the Local Rules and the court’s August 24, 20 2016 order suggests that she has abandoned this action and that further time spent by the court 21 thereon will consume scarce judicial resources in addressing litigation which plaintiff 22 demonstrates no intention to pursue. 23 Under the circumstances of this case, the third factor, prejudice to defendants from 24 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 25 motion prevents defendants from addressing plaintiff’s substantive opposition, and would delay 26 resolution of this action, thereby causing defendants to incur additional time and expense. 27 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 28 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 2 1 2 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 3 against dismissal of this action as a sanction. However, for the reasons set forth above, the first, 4 second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 5 those factors outweigh the general public policy favoring disposition of cases on their merits. See 6 Ferdik, 963 F.2d at 1263. 7 8 9 10 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). 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 objections shall be filed and served within fourteen days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: October 12, 2016 20 21 22 23 24 Will1767.fr 25 26 27 28 3

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