(PC) Coffee v. Sisto et al, No. 2:2009cv01838 - Document 23 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/8/2010 RECOMMENDING that this action be dismissed pursuant to F. R. Civ. P. 41(b). Referred to Judge Morrison C. England, Jr.; Objections due w/in 21 days.(Yin, K)
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(PC) Coffee v. Sisto et al Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 M.L. COFFEE, 11 Plaintiff, 12 vs. 13 No. 2:09-cv-1838 MCE KJN P D.K. SISTO, et al., 14 15 16 Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding without counsel with a civil rights action 17 pursuant to 42 U.S.C. § 1983. On September 22, 2010, defendants filed a motion to dismiss 18 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On June 2, 2010, the court 19 advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal 20 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 21 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). In that same order, plaintiff 22 was advised of the requirements for filing an opposition to the pending motion and that failure to 23 oppose such a motion might be deemed a waiver of opposition to the motion. 24 On October 28, 2010, plaintiff was ordered to file an opposition or a statement of 25 non-opposition to the pending motion within thirty days. In the same order, plaintiff was 26 informed that failure to file an opposition would result in a recommendation that this action 1 Dockets.Justia.com 1 be dismissed pursuant to Federal Rule of Civil Procedure 41(b). The thirty day period has now 2 expired and plaintiff has not responded to the 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 one and a half years and has 15 reached the stage for resolution of a dispositive motion. Plaintiff’s failure to comply with the 16 Local Rules and the court’s October 28, 2010 order suggests that he has abandoned this action 17 and that further time spent by the court thereon will consume scarce judicial resources in 18 addressing litigation which plaintiff demonstrates no intention to pursue. 19 Under the circumstances of this case, the third factor, prejudice to defendants 20 from plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose 21 the motion prevents defendants from addressing plaintiff’s substantive opposition, and would 22 delay resolution of this action, thereby causing defendants to incur additional time and expense. 23 The fifth factor also favors dismissal. The court has advised plaintiff of the 24 requirements under the Local Rules and granted ample additional time to oppose the pending 25 motion, all to no avail. The court finds no suitable alternative to dismissal of this action. 26 //// 2 1 The fourth factor, public policy favoring disposition of cases on their merits, 2 weighs against dismissal of this action as a sanction. However, for the reasons set forth supra, 3 the first, second, third, and fifth factors strongly support dismissal. Under the circumstances of 4 this case, those factors outweigh the general public policy favoring disposition of cases on their 5 merits. See Ferdik, 963 F.2d at 1263. 6 7 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be filed and served within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: December 8, 2010 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 coff1838.46fr 21 22 23 24 25 26 3