(PC) Hill v. Rackley et al, No. 2:2013cv00828 - Document 23 (E.D. Cal. 2015)
Court Description: ORDER signed by Judge Kimberly J. Mueller on 9/30/15: IT IS HEREBY ORDERED that the 22 FINDINGS AND RECOMMENDATIONS are not adopted; this action is DISMISSED without prejudice pursuant to FRCP 41(b); and the Clerk of the Court is DIRECTED to close this case. CASE CLOSED. (Meuleman, A)
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(PC) Hill v. Rackley et al Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK HILL, 12 Plaintiff, 13 14 No. 2:13-cv-0828-KJM-CMK-P v. ORDER R.J. RACKLEY, et al., 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District 19 of California local rules. On December 1, 2014, defendants filed a motion for summary judgment. Defendants 20 21 advanced several grounds in support of the motion, including that plaintiff failed to exhaust 22 administrative remedies prior to suit. Plaintiff did not oppose the motion. On July 20, 2015, the 23 magistrate judge filed findings and recommendations recommending that defendants’ motion be 24 granted on the ground that plaintiff failed to exhaust administrative remedies prior to suit. The 25 magistrate judge did not reach the other grounds raised in the motion. The findings and 26 recommendations were served on the parties and contained notice that the parties may file 27 objections within a specified time. No objections to the findings and recommendations have been 28 ///// 1 Dockets.Justia.com 1 filed. The court declines to adopt the recommendation and will instead dismiss this action for 2 lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). 3 Defendants’ motion for summary judgment was filed December 1, 2014. On July 10, 4 2014, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of 5 the Federal Rules of Civil Procedure, including a motion for summary judgment based on failure 6 to exhaust administrative remedies prior to suit. See ECF No. 9 ¶¶ 10, 12 (citing Rand v. 7 Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), Klingele v. Eikenberry, 849 F.2d 409, 411- 8 12 (9th Cir. 1988), and Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)). The July 10, 2014 order 9 provided that motions for summary judgment “shall be briefed” in accordance with the provisions 10 of Local Rule 230(l). Plaintiff has not opposed the motion for summary judgment. 11 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 12 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 13 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a court 14 order the district court must weigh five factors including: ‘(1) the public's interest in expeditious 15 resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 16 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 17 availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. 18 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53 19 (9th Cir. 1995). 20 In deciding to dismiss this action, the court has considered the five factors set forth in 21 Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of this action. The 22 action has been pending for almost two years. Plaintiff’s failure to oppose the summary judgment 23 motion suggests that he has abandoned this action and that further time spent by the court thereon 24 will consume scarce judicial resources in addressing litigation plaintiff demonstrates no intention 25 to pursue. 26 Under the circumstances of this case, the third factor, prejudice to defendants from 27 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 28 ///// 2 1 motion prevents defendants from addressing plaintiff’s substantive opposition, and would delay 2 resolution of this action, thereby causing defendants to incur additional time and expense. 3 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 4 for opposing a motion for summary judgment to no avail. The court finds no suitable alternative 5 to dismissal of this action. 6 The fourth factor, public policy favoring disposition of cases on their merits, weighs 7 against dismissal of this action as a sanction. However, the first, second, third, and fifth factors 8 strongly support dismissal. Under the circumstances of this case, those factors outweigh the 9 general public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at 1263. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations filed July 20, 2015, are not adopted; 12 2. This action is dismissed without prejudice pursuant to Federal Rule of Civil 13 14 15 Procedure 41(b); and 3. The Clerk of the Court is directed to close this case. DATED: September 30, 2015. 16 17 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3
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