(PC) St. Martin v. Mayberg, et al., No. 2:2007cv01174 - Document 33 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 1/6/10 recommending that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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(PC) St. Martin v. Mayberg, et al. Doc. 33 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL G. St. MARTIN, Plaintiff, 11 12 13 14 vs. STEPHEN MAYBERG, et al., Defendants. 17 18 FINDINGS AND RECOMMENDATIONS / 15 16 Civ. No. S-07-1174 MCE KJM P Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On April 27, 2009, defendants filed a motion to dismiss. On November 17, 2009, plaintiff was ordered to file an opposition or a statement 19 of non-opposition to the pending motion within twenty days. In the same order, plaintiff was 20 informed that failure to file an opposition would result in a recommendation that this action be 21 dismissed pursuant to Fed. R. Civ. P. 41(b). The thirty day period has now expired and plaintiff 22 has not responded to the court’s order. 23 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 24 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 25 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 26 court order the district court must weigh five factors including: ‘(1) the public's interest in 1 Dockets.Justia.com 1 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 2 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 3 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 4 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 5 F.3d 52, 53 (9th Cir. 1995). 6 In determining to recommend that this action be dismissed, the court has 7 considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly 8 support dismissal of this action. The action has been pending for more than two years. 9 Plaintiff’s failure to comply with the Local Rules and the court’s November 17, 2009 order 10 suggests that he has abandoned this action and that further time spent by the court thereon will 11 consume scarce judicial resources in addressing litigation which plaintiff demonstrates no 12 intention to pursue. The fifth factor also favors dismissal. The court has advised plaintiff of the 13 14 requirements under the Local Rules and granted ample additional time to oppose the pending 15 motion, all to no avail. The court finds no suitable alternative to dismissal of this action. Under the circumstances of this case, the third factor, prejudice to defendants 16 17 from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to 18 oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963 19 F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to 20 continue an action plaintiff has abandoned. The fourth factor, public policy favoring disposition 21 of cases on their merits, weighs against dismissal of this action as a sanction. However, for the 22 reasons set forth above, the first, second, and fifth factors strongly support dismissal and the 23 third factor does not mitigate against it. Under the circumstances of this case, those factors 24 outweigh the general public policy favoring disposition of cases on their merits. See Ferdik, 963 25 F.2d at 1263. 26 ///// 2 1 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 5 one days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 8 that failure to file objections within the specified time may waive the right to appeal the District 9 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: January 6, 2010. 11 12 13 2 stma1174.46fr 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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