(PC) Utter v. Schwarenegger, et al, No. 2:2008cv00734 - Document 27 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/29/09 RECOMMENDING that this action be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)

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(PC) Utter v. Schwarenegger, et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 NICHOLAS W. UTTER, 11 Plaintiff, 12 13 No. 2:08-cv-0734-GEB-JFM (PC) vs. ARNOLD SCHWARZENEGGER, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. On July 27, 2009, defendants filed a motion to dismiss pursuant to Fed. R. 18 Civ. P. 12(b). On April 16, 2009, the court advised plaintiff of the requirements for filing an 19 opposition to the pending motion and that failure to oppose such a motion might be deemed a 20 waiver of opposition to the motion. 21 On September 2, 2009, plaintiff was ordered to file an opposition or a statement 22 of non-opposition to the pending motion within thirty days. In the same order, plaintiff was 23 informed that failure to file an opposition would result in a recommendation that this action be 24 dismissed pursuant to Fed. R. Civ. P. 41(b). The thirty day period has now expired and plaintiff 25 has not responded to the court’s order. 26 ///// 1 Dockets.Justia.com 1 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 2 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 3 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 4 court order the district court must weigh five factors including: ‘(1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 6 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 7 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 8 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 9 F.3d 52, 53 (9th Cir. 1995). 10 In determining to recommend that this action be dismissed, the court has 11 considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly 12 support dismissal of this action. The action has been pending for over a year and a half. 13 Plaintiff’s failure to comply with the Local Rules and the court’s September 2, 2009, order 14 suggests that he has abandoned this action and that further time spent by the court thereon will 15 consume scarce judicial resources in addressing litigation which plaintiff demonstrates no 16 intention to pursue. 17 The fifth factor also favors dismissal. The court has advised plaintiff of the 18 requirements under the Local Rules and granted ample additional time to oppose the pending 19 motion, all to no avail. The court finds no suitable alternative to dismissal of this action. 20 Under the circumstances of this case, the third factor, prejudice to defendants, 21 from plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to 22 oppose the motion does not put defendants at any disadvantage in this action. See Ferdik, 963 23 F.2d at 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to 24 continue an action plaintiff has abandoned. The fourth factor, public policy favoring disposition 25 of cases on their merits, weighs against dismissal of this action as a sanction. However, for the 26 reasons set forth supra, the first, second, and fifth factors strongly support dismissal and the third 2 1 factor does not mitigate against it. Under the circumstances of this case, those factors outweigh 2 the general public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at 3 1263. 4 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 8 days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 11 that failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: October 29, 2009. 14 15 16 17 18 12 utte0734.46fr 19 20 21 22 23 24 25 26 3

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