(PC) Santos v. Shasta County Sherif, et al, No. 2:2003cv02525 - Document 82 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 8/4/09 RECOMMENDING that this action be dismissed pursuant to F.R.Civ.P. 41(b). Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)
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(PC) Santos v. Shasta County Sherif, et al Doc. 82 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TIMOTHY MARVIN SANTOS, Plaintiff, 11 12 13 Civ. No. S-03-2525 GEB KJM P vs. SHASTA COUNTY SHERIFF’S DEPARTMENT, et al., 14 Defendants. 16 FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. On March 9, 2009, defendants filed a motion for summary judgment. On 18 September 2, 2004, the court advised plaintiff of the requirements for opposing a motion 19 pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 20 952, 957 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 21 1988). In that same order, plaintiff was advised of the requirements for filing an opposition to 22 the pending motion and that failure to oppose such a motion might be deemed a waiver of 23 opposition to the motion. 24 On June 24, 2009, plaintiff was given an extension of time in which to file his 25 opposition within thirty days. In the same order, plaintiff was informed that failure to file an 26 opposition would result in a recommendation that this action be dismissed pursuant to Fed. R. 1 Dockets.Justia.com 1 Civ. P. 41(b). The thirty day period has now expired and plaintiff has not responded to the 2 court’s order. 3 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 4 an 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 13 considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly 14 support dismissal of this action. The action has been pending for six years and has reached the 15 stage, set by the court’s subsequent scheduling order issued in connection with the stay of 16 proceedings, for resolution of dispositive motions and, if necessary, preparation for pretrial 17 conference and jury trial. (See Scheduling Order, filed 4/1/2008.) Plaintiff’s failure to comply 18 with the Local Rules and the court’s June 24, 2009 order suggests that he has abandoned this 19 action and that further time spent by the court thereon will consume scarce judicial resources in 20 addressing litigation which plaintiff demonstrates no intention to pursue. 21 The fifth factor also favors dismissal. The court has advised plaintiff of the 22 requirements under the Local Rules and granted ample additional time to oppose the pending 23 motion, all to no avail. The court finds no suitable alternative to dismissal of this action. 24 Under the circumstances of this case, the third factor, prejudice to defendants 25 from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to 26 oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963 2 1 F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to 2 continue an action plaintiff has abandoned. The fourth factor, public policy favoring disposition 3 of cases on their merits, weighs against dismissal of this action as a sanction. However, for the 4 reasons set forth supra, the first, second, and fifth factors strongly support dismissal and the third 5 factor does not mitigate against it. Under the circumstances of this case, those factors outweigh 6 the general public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at 7 1263. 8 9 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 15 that failure to file objections within the specified time may waive the right to appeal the District 16 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: August 4, 2009. 18 19 20 21 22 23 2 24 sant2525.46fr 25 26 3
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