-KJN (PC) Mallett v. Hubbard et al, No. 2:2010cv00851 - Document 27 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 09/20/11 ORDERING that the clerk of the court assign a District Judge to this action. U.S. District Judge William B. Shubb randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice pursuant to FRCP 41(b). Referred to Judge William B. Shubb. Objections due within 21 days. (Plummer, M)
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-KJN (PC) Mallett v. Hubbard 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 WADE KENNETH MALLETT, 11 12 Plaintiff, No. 2: 10-cv-0851 KJN P vs. 13 SUSAN HUBBARD, et al., 14 Defendants. 15 16 ORDER AND 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 July 6, 2011, defendant Walker filed a motion for summary 18 judgment. On August 12, 2010, the court advised plaintiff of the requirements for opposing a 19 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 20 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th 21 Cir. 1988). In that same order, plaintiff was advised of the requirements for filing an opposition 22 to the pending motion and that failure to oppose such a motion would be deemed as consent to 23 have the: (a) pending motion granted; (b) action dismissed for lack of prosecution; and (c) action 24 dismissed based on plaintiff’s failure to comply with these rules and a court order. 25 26 On August 10, 2011, plaintiff was ordered to file an opposition or a statement of non-opposition to the pending motion within thirty days. In the same order, plaintiff was 1 Dockets.Justia.com 1 informed that failure to file an opposition would result in a recommendation that this action 2 be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The thirty day 3 period has now expired and plaintiff has not responded to the court’s order. 4 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 5 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 6 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 7 court order the district court must weigh five factors including: ‘(1) the public’s interest in 8 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 9 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 10 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 11 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 12 F.3d 52, 53 (9th Cir. 1995). 13 In determining to recommend that this action be dismissed, the court has 14 considered the five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly 15 support dismissal of this action. The action has been pending for one and one-half years and has 16 reached the stage, set by the court’s December 22, 2010 scheduling order, for resolution of 17 dispositive motions and, if necessary, preparation for pretrial conference and jury trial. (See 18 Scheduling Order, filed December 22, 2010.) Plaintiff’s failure to comply with the Local Rules 19 and the court’s August 10, 2011 order suggests that he has abandoned this action and that further 20 time spent by the court thereon will consume scarce judicial resources in addressing litigation 21 which plaintiff demonstrates no intention to pursue. 22 Under the circumstances of this case, the third factor, prejudice to defendants 23 from plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose 24 the motion prevents defendants from addressing plaintiff’s substantive opposition, and would 25 delay resolution of this action, thereby causing defendants to incur additional time and expense. 26 The fifth factor also favors dismissal. The court has advised plaintiff of the 2 1 requirements under the Local Rules and granted ample additional time to oppose the pending 2 motion, all to no avail. The court finds no suitable alternative to dismissal of this action. 3 The fourth factor, public policy favoring disposition of cases on their merits, 4 weighs against dismissal of this action as a sanction. However, for the reasons set forth supra, 5 the first, second, third, and fifth factors strongly support dismissal. Under the circumstances of 6 this case, those factors outweigh the general public policy favoring disposition of cases on their 7 merits. See Ferdik, 963 F.2d at 1263. 8 9 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district judge to this action; 10 11 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 14 one days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: September 20, 2011 21 22 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 23 24 mal851.nop 25 26 3
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