Black v. Skolnik et al

Filing 34

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE re 21 Motion to Dismiss filed by Defendants Isidro Baca, Jack Palmer, Howard Skolnik, Ted D'Amico and 32 Plaintiff's Motion to Strike. Objections to R&R due by 2/26/2009. Signed by Magistrate Judge Robert A. McQuaid, Jr. on 2/10/09. (Copies have been distributed pursuant to the NEF - HJ)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. HOWARD SKOLNIK, et al., Defendants. ERIK R. BLACK, Plaintiff, UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) ) ) ) ) ) 3:07-CV-562-BES (RAM) REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Report and Recommendation is made to the Honorable Brian E. Sandoval, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. Before the court is Defendants' Motion to Dismiss (Doc. #21). Plaintiff did not file an opposition. For the reasons discussed below, it is recommended that the District Court grant the motion. I. BACKGROUND This is an action alleging constitutional claims under 42 U.S.C. § 1983. Plaintiff commenced this action on November 20, 2007 by filing a motion for leave to proceed in forma pauperis. (Doc. #1). Plaintiff subsequently filed his complaint on January 31, 2008. (Doc. #9.) Defendants filed their motion to dismiss on April 11, 2008. (Doc. #21.) The court set the deadline to oppose the motion to dismiss for July 15, 2008. (Doc. #22.) At a hearing concerning the motion to dismiss held after the expiration of this deadline, the court gave Plaintiff until November 4, 2008 to file his opposition. (Doc. #21.) After receiving no submission from Plaintiff, the court extended the deadline a second time to December 1, 2008. (Doc. #29.) More than two weeks after this deadline passed, Plaintiff made a motion for an extension of time for ninety days, alleging that he was encountering difficulty locating an

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attorney to represent him. (Doc. #31.) The court denied the motion but gave Plaintiff until December 24, 2008 to file his opposition. Five days after this third deadline expired, Plaintiff instead filed a motion to strike, arguing that he should be allowed to try his case but not challenging the merits of Defendant's motion. (Doc. #32.) At this point in the proceedings, the record reveals that Plaintiff has filed no opposition to the motion to dismiss. II. DISCUSSION The Local Rules of this court provide that a party's failure to file a memorandum in opposition to a motion constitutes consent to granting the motion. See D.Nev. Local R. 9014(d)(3). The failure to follow the local rules or an order of the court is proper grounds for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). Before such a dismissal, however, the court is required to weigh several factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Henderson, 779 F.2d at 1423; United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). Applying this balancing test, the court finds that the public interest favors granting the motion because Plaintiff has failed to oppose despite being granted multiple extensions of time. The repeated failure to comply with orders and instructions wastes the resources of this court. With respect to the second factor, the need to manage the court's docket in light of the various pressing civil and criminal matters before it favors dismissal. Plaintiff has prevented his case from moving forward for more than five months. The third factor favors granting the motion because it would prejudice Defendants to subject them to the burdens of further litigation after

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Plaintiff has failed to participate in the proceedings. The fifth factor also favors dismissal, as the court has undertaken the less drastic measure of repeatedly warning Plaintiff that his failure to file an opposition could constitute consent to dismissal. Buss v. Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984), cert. denied, 469 U.S. 1192 (warning plaintiff that failure to obey a court order will result in dismissal satisfies the requirement the court consider alternatives). The court finds that the motion should be granted. The interest in disposing the case on its merits is greatly outweighed by the factors favoring dismissal. Moreover, this ruling does not bar Plaintiff from pursuing his claims in the future. Even though the courts liberally construe pleadings by pro se plaintiffs, the rules of procedure still apply. Ghazali, 46 F.3d at 53 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). When a litigant does not follow them, the case is properly dismissed. Id. III. RECOMMENDATION IT IS HEREBY RECOMMENDED that the District Judge enter an Order GRANTING Defendants' Motion to Dismiss (Doc. #21) without prejudice. The parties should be aware of the following: 1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule IB 3-2 of the

Local Rules of Practice, specific written objections to this Report and Recommendation within ten (10) days of receipt. These objections should be titled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court. 2. That this Report and Recommendation is not an appealable order and that any

notice of appeal pursuant to Rule 4(a)(1), Fed. R. Civ. P., should not be filed until entry of the District Court's judgment. DATED: February 10, 2009.

UNITED STATES MAGISTRATE JUDGE