(PC) Morris v. Guffee, et al., No. 2:2013cv01171 - Document 52 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/07/15 recommending that this action be dismissed pursuant to FRCP 41(b). Referred to Judge Troy L. Nunley. Objections due within 7 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEON E. MORRIS, 12 No. 2:13-cv-1171 TLN DAD P Plaintiff, 13 v. 14 GUFFEE et all., 15 FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. For the reasons discussed herein, the court will 19 recommend that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). BACKGROUND 20 21 On February 10, 2015, counsel on behalf of defendants Low, Brewer, Brown, Hernandez, 22 and Cruz filed a motion to dismiss plaintiff’s second amended complaint as frivolous or, 23 alternatively, for failure to state a cognizable claim for relief. (Doc. No. 25) On March 11, 2015, 24 counsel on behalf of defendant Guffee also filed a motion to dismiss plaintiff’s second amended 25 complaint as frivolous or, alternatively, for failure to state a cognizable claim for relief. (Doc. 26 No. 33) 27 28 On March 16, 2015, Magistrate Judge Kendall J. Newman granted plaintiff a two-and-ahalf-month extension of time up to and including May 31, 2015, to file written oppositions to the 1 1 two pending motions to dismiss in this case. (Doc. No. 35) Magistrate Judge Newman cautioned 2 plaintiff that no further extensions would be granted for that purpose. (Id.) 3 On March 17, 2015, District Judge Troy L. Nunley issued a related case order and 4 reassigned this case to himself and the undersigned for all further proceedings. (Doc. No. 36) On 5 June 12, 2015, the undersigned observed that plaintiff had not filed an opposition to either 6 pending motion to dismiss in this case in accordance with Magistrate Judge Newman’s prior 7 order and issued an order requiring plaintiff to file his oppositions within fourteen days. (Doc. 8 No. 43) The court warned plaintiff that failure to file his oppositions would be deemed as 9 statements of non-opposition and would result in a recommendation that this action be dismissed 10 pursuant to Federal Rule of Civil Procedure 41(b). (Id.) Thereafter, plaintiff filed an “answer” to defendant Guffee’s motion to dismiss stating that 11 12 he never received the defendant’s motion. (Doc. No. 44) In the interest of justice, on July 8, 13 2014, the court provided plaintiff with a courtesy copy of defendant Guffee’s motion to dismiss 14 and granted plaintiff a final fourteen days to file an opposition to defendant Guffee’s motion. 15 (Doc. No. 49) The court once again warned plaintiff again that failure to file an opposition would 16 be deemed a statement of non-opposition and would result in a recommendation that this action 17 be dismissed pursuant to Federal Rule of Civil Procedure 41(b). (Id.) The time for plaintiff to file his oppositions to defendants’ motions to dismiss has now 18 19 expired, and plaintiff still has not filed an opposition to defendants Low, Brewer, Brown, 20 Hernandez, and Cruz’s motion to dismiss or defendant Guffee’s motion to dismiss. 21 DISCUSSION 22 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 23 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 24 1260 (9th Cir. 1992). In Ferdik, the Ninth Circuit Court of Appeals held that the district court did 25 not abuse its discretion when it dismissed a pro se litigant’s civil rights action for failing to file an 26 amended complaint. The court explained that, in deciding whether to dismiss a case for a 27 litigant’s failure to comply with a court order, the district court must weigh five factors: 28 ///// 2 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” 1 2 3 4 Id. at 1260-61 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.3d 829, 831 (9th 5 Cir. 1986). In this case, the first two factors as well as the fifth factor cited by the court in Ferdik 6 7 strongly support dismissal of this action. This case has been pending before the court since June 8 11, 2013, and defendants have some time ago filed their motions to dismiss. Plaintiff’s repeated 9 failure to comply with court orders and the Local Rules strongly suggests that further time spent 10 by the court on this case will consume scarce judicial resources in addressing litigation which 11 plaintiff has demonstrated he has no intention to diligently pursue. Notably, the court has 12 repeatedly warned plaintiff that it would not grant him further extensions of time to file his 13 oppositions to defendants’ motions to dismiss and that any failure on plaintiff’s part to file his 14 oppositions would result in a recommendation that this action be dismissed. Inexplicably, 15 plaintiff has failed to file any opposition to defendants’ pending motions to dismiss. Under these 16 circumstances, there is no suitable less drastic alternative to dismissal of this case. In short, 17 plaintiff’s refusal to follow the court’s orders has left the court stymied and made it impossible 18 for this civil action to be adjudicated by the court. Therefore, due to plaintiff’s conduct, the 19 undersigned is left with no choice but to recommend dismissal of this action. The third factor, the risk of prejudice to the defendants, also weighs in favor of dismissal. 20 21 Plaintiff’s failure to oppose defendants’ motions to dismiss prevents the defendants from 22 addressing plaintiff’s claims and unnecessarily delays resolution of this action thereby forcing 23 defendants to incur additional time and expense. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 24 1994) (“When considering prejudice to the defendant, ‘the failure to prosecute diligently is 25 sufficient by itself to justify dismissal, even in the absence of a showing of actual prejudice to the 26 defendant from the failure …. The law presumes injury from unreasonable delay.’”) (quoting 27 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976)). 28 ///// 3 1 Finally, the fourth factor, public policy favoring disposition of cases on the merits, weighs 2 against dismissal of this action. However, for the reasons set forth above, the first, second, third, 3 and fifth factors support dismissal. Under the circumstances of this case, those factors outweigh 4 the general public policy favoring disposition of cases on their merits. 5 6 7 8 CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days after 10 being served with these findings and recommendations, any party may file written objections with 11 the court and serve a copy on all parties. Such a document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 13 and filed within seven days after service of the objections. The parties are advised that failure to 14 file objections within the specified time may waive the right to appeal the District Court’s order. 15 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: August 7, 2015 17 18 19 20 DAD:9 morr1171.57ftp 21 22 23 24 25 26 27 28 4
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