Youngs v. Dowlatshahi et al

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/21/16 RECOMMENDING that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Morrison C. England, Jr.; 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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TYRONE YOUNGS,

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No. 2: 15-cv-2563 MCE KJN P

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

A. DOWLATSHAHI, et al.,

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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 May 3, 2016, defendants filed a motion to dismiss. On March 4, 2016,

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the court advised plaintiff that motions to dismiss shall be briefed pursuant to Local Rule 230(l).

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(ECF No.17.)

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On June 3, 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. In that same order, plaintiff was advised of

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the requirements for filing an opposition to the pending motion and that failure to oppose such a

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

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dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply

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with these rules and a court order. Plaintiff was also informed that failure to file an opposition

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

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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 support dismissal of this

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action. The action has been pending for 8 months. Plaintiff’s failure to comply with the Local

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Rules and the court’s March 4, 2016 and June 3, 2016 orders suggests that he has abandoned this

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action and that further time spent by the court thereon will consume scarce judicial resources in

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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 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 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: July 21, 2016

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Yo2563.fr

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