(PC) Gates v. Sergent et al

Filing 50

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Chi Soo Kim on 1/6/2025 RECOMMENDING this action be dismissed without prejudice based on plaintiff's failure to prosecute. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Deputy Clerk KLY)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTIAN D. GATES,

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No. 2:22-cv-1576 DAD CSK P

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

S. SERGENT, et al.,
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. For the following reasons, this Court recommends that this action be

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dismissed based on plaintiff’s failure to prosecute.

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On April 20, 2023, the Court advised plaintiff of the requirements for opposing a motion

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pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d

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952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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(ECF No. 32.) On August 27, 2024, defendants filed a motion for summary judgment. (ECF No.

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44.) Plaintiff did not file an opposition. On September 25, 2024, this Court granted plaintiff

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thirty additional days to file an opposition. (ECF No. 46.) In the order filed September 25, 2024,

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the Court advised plaintiff that failure to oppose defendants’ summary judgment motion would be

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deemed as consent to have the: (a) action dismissed for lack of prosecution; and (b) action

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dismissed based on plaintiff’s failure to comply with these rules and a court order. (Id.) Plaintiff
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was also informed that failure to file an opposition would result in a recommendation that this

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action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.)

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Plaintiff did not file an opposition within thirty days of the order filed September 25, 2024.

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Accordingly, on November 4, 2024, this Court recommended that this action be dismissed

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without prejudice based on plaintiff’s failure to prosecute. (ECF No. 47.) On November 15,

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2024, plaintiff filed a motion for a ninety-day extension of time to file an opposition and a request

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to conduct discovery. (ECF No. 48.) On November 21, 2024, this Court vacated the November 4

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findings and recommendations to dismiss, granted plaintiff another thirty days to file his

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opposition and denied plaintiff’s request to conduct discovery. (ECF No. 49.) More than thirty

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days have passed since the Court’s November 21 order, and plaintiff did not file an opposition.

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“District courts have inherent power to control their dockets” and, in exercising that

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power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth.,

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City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on

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a party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g.,

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with

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a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th

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Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d

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1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action, the Court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440

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(9th Cir. 1988).

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Here, in determining to recommend that this action be dismissed, the Court considered the

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five factors set forth above. The first two factors strongly support dismissal of this action. The

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action has been pending for over two years and reached the stage, set by the Court’s order filed

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June 27, 2024 for resolution of dispositive motions. (ECF No. 43.) Plaintiff’s failure to comply

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with the Local Rules and the Court’s November 21, 2024 order suggests that he 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, is neutral. While plaintiff’s failure to oppose the motion

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could delay resolution of this action, and a presumption of injury arises from the unreasonable

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delay in prosecuting an action, Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976), plaintiff

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was also warned that the failure to oppose the motion could result in granting the motion and

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dismissal of the action, which would not prejudice defendants.

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The fourth factor, public policy favoring disposition of cases on their merits, weighs
against dismissal of this action as a sanction.

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The fifth factor favors dismissal. The Court advised plaintiff of the requirements under

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

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The Court finds no suitable alternative to dismissal of this action.

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Therefore, for the reasons set forth above, the first, second, and fifth factors strongly

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support dismissal, and the third factor is neutral. Under the circumstances of this case, those

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

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice based on plaintiff’s failure to prosecute.

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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: January 6, 2025

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Gates1576.fr(2)/2

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