Taylor v. Wong et al

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/6/18 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 due within 14 days after being served with these findings and recommendations.(Coll, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT TAYLOR,

12
13
14
15

No. 2: 17-cv-1758 MCE KJN P

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

WONG, et al.,
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 August 23, 2018, defendants filed a motion for summary judgment on

19

the grounds that plaintiff failed to exhaust administrative remedies. On February 14, 2018, the

20

court advised plaintiff of the requirements for opposing a motion for summary judgment based on

21

plaintiff’s failure to exhaust administrative remedies pursuant to Rule 56 of the Federal Rules of

22

Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and

23

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

24

On September 20, 2018, plaintiff was ordered to file an opposition or a statement of non-

25

opposition to the pending motion within thirty days. In that same order, plaintiff was advised of

26

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

27

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

28

dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply
1

1

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

2

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

3

Federal Rules of Civil Procedure.
The thirty days period has now expired and plaintiff has not responded to the court’s

4
5

order.

6

“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

7

action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

8

1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

9

court order the district court must weigh five factors including: ‘(1) the public's interest in

10

expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of

11

prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

12

and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting

13

Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46

14

F.3d 52, 53 (9th Cir. 1995).

15

In determining to recommend that this action be dismissed, the court has considered the

16

five factors set forth in Ferdik. Here, as in Ferdik, the first two factors support dismissal of this

17

action. The action has been pending for over one year. This action has reached the stage when it

18

is appropriate to resolve the issue of exhaustion of administrative remedies. Plaintiff’s failure to

19

comply with the Local Rules and the court’s September 20, 2016 order suggests that he has

20

abandoned this action and that further time spent by the court thereon will consume scarce

21

judicial resources in addressing litigation which plaintiff demonstrates no intention to pursue.

22

Under the circumstances of this case, the third factor, prejudice to defendants from

23

plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the

24

motion prevents defendants from addressing plaintiff’s substantive opposition, and would delay

25

resolution of this action, thereby causing defendants to incur additional time and expense.

26

The fifth factor also favors dismissal. The court has advised plaintiff of the requirements

27

under the Local Rules and granted ample additional time to oppose the pending motion, all to no

28

avail. The court finds no suitable alternative to dismissal of this action.
2

1

The fourth factor, public policy favoring disposition of cases on their merits, weighs

2

against dismissal of this action as a sanction. However, for the reasons set forth above, the first,

3

second, third, and fifth factors strongly support dismissal. Under the circumstances of this case,

4

those factors outweigh the general public policy favoring disposition of cases on their merits. See

5

Ferdik, 963 F.2d at 1263.

6
7

For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be
dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

8

These findings and recommendations are submitted to the United States District Judge

9

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

10

after being served with these findings and recommendations, any party may file written

11

objections with the court and serve a copy on all parties. Such a document should be captioned

12

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

13

objections shall be filed and served within fourteen days after service of the objections. The

14

parties are advised that failure to file objections within the specified time may waive the right to

15

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

16

Dated: November 6, 2018

17
18
19

Tay1758.dis

20
21
22
23
24
25
26
27
28
3