Parnell v. Botkins et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/21/2018 RECOMMENDING this action be dismissed without prejudice pursuant to Fed. R. Civ. P. 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY PARNELL, 12 No. 2:16-cv-2692 MCE KJN P Plaintiff, 13 v. 14 BOTKIN, et al., 15 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 November 20, 2017, defendants Muhammad, Botkin and Jensen filed a 19 motion to dismiss. On May 3, 2017, the court advised plaintiff that motions to dismiss shall be 20 briefed pursuant to Local Rule 230(l). (ECF No. 10.) 21 On December 20, 2017, plaintiff was ordered to file an opposition or a statement of non- 22 opposition to the pending motion within thirty days. In that same order, plaintiff was advised of 23 the requirements for filing an opposition to the pending motion and that failure to oppose such a 24 motion would be deemed as consent to have the: (a) pending motion granted; (b) action 25 dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply 26 with these rules and a court order. Plaintiff was also informed that failure to file an opposition 27 would result in a recommendation that this action be dismissed pursuant to Rule 41(b) of the 28 Federal Rules of Civil Procedure. 1 1 On January 11, 2018, plaintiff was reminded about the January 20, 2018 deadline. 2 The thirty day period has now expired and plaintiff has not responded to the court’s order. 3 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 4 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 5 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 6 court order the district court must weigh five factors including: ‘(1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 9 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 10 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 11 F.3d 52, 53 (9th Cir. 1995). 12 In determining to recommend that this action be dismissed, the court has considered the 13 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal 14 of this action. The action has been pending since November 14, 2016, and defendants contend 15 that plaintiff failed to exhaust his administrative remedies prior to filing the instant action. (See 16 ECF No. 21.) Plaintiff’s failure to comply with the Local Rules and the court’s December 20, 17 2017 order suggests that he has abandoned this action and that further time spent by the court 18 thereon will consume scarce judicial resources in addressing litigation which plaintiff 19 demonstrates no intention to pursue. 20 Under the circumstances of this case, the third factor, prejudice to defendants from 21 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 22 motion prevents defendants from addressing plaintiff’s opposition, if any, and would delay 23 resolution of this action, thereby causing defendants to incur additional time and expense. 24 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 25 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 26 avail. The court finds no suitable alternative to dismissal of this action. 27 28 The fourth factor, public policy favoring disposition of cases on their merits, weighs against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 2 1 second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 2 those factors outweigh the general public policy favoring disposition of cases on their merits. See 3 Ferdik, 963 F.2d at 1263. 4 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be filed and served within fourteen days after service of the objections. The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: February 21, 2018 15 16 17 18 / 19 20 21 22 23 24 25 26 27 28 3

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