(PC) Amoah v. Hemness ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NANA D. AMOAH, No. 2:18-cv-3120 TLN KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS & RECOMMENDATIONS 14 HEMNESS, et al., 15 Defendants. 16 17 Plaintiff is a former jail inmate, proceeding without counsel, with a civil rights action 18 pursuant to 42 U.S.C. § 1983. On March 22, 2019, the court screened plaintiff’s complaint and 19 found that plaintiff stated a cognizable civil rights claim against defendant Hemness, but not 20 against defendant Sacramento County Sheriff’s Department. (ECF No. 6.) Plaintiff was granted 21 leave to amend to attempt to state a claim against the County, but declined. On May 8, 2019, 22 plaintiff consented to the dismissal of defendant County. (ECF No. 8.) The Clerk of the Court is 23 directed to terminate defendant County. 24 On July 25, 2019, defendant Hemness filed a motion to dismiss. On May 10, 2019, the 25 court advised plaintiff that motions to dismiss shall be briefed pursuant to Local Rule 230(l). 26 (ECF No. 9.) On August 30, 2019, plaintiff was ordered to file an opposition or a statement of 27 non-opposition to the pending motion within twenty-one days. In that same order, plaintiff was 28 advised of the requirements for filing an opposition to the pending motion and that failure to 1 oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b) 2 action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to 3 comply with these rules and a court order. Plaintiff was also informed that failure to file an 4 opposition would result in a recommendation that this action be dismissed pursuant to Rule 41(b) 5 of the Federal Rules of Civil Procedure. 6 The twenty-one day period expired on September 20, 2019, and plaintiff has not filed an 7 opposition or responded to the court’s order. 8 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 9 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 11 court order the district court must weigh five factors including: ‘(1) the public’s interest in 12 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 13 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 14 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 15 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 16 F.3d 52, 53 (9th Cir. 1995). 17 In determining to recommend that this action be dismissed, the court has considered the 18 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal 19 of this action. The action has been pending for almost ten months and is due for the issuance of 20 the court’s scheduling order. Plaintiff’s failure to comply with the Local Rules and the court’s 21 August 30, 2019 order suggests that he has abandoned this action and that further time spent by 22 the court thereon will consume scarce judicial resources in addressing litigation which plaintiff 23 demonstrates no intention to pursue. 24 Under the circumstances of this case, the third factor, prejudice to defendants from 25 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 26 motion prevents defendants from addressing plaintiff’s substantive opposition, and would delay 27 resolution of this action, thereby causing defendants to incur additional time and expense. 28 //// 1 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 2 | under the Local Rules and granted ample additional time to oppose the pending motion, all to no 3 | avail. The court finds no suitable alternative to dismissal of this action. 4 The fourth factor, public policy favoring disposition of cases on their merits, weighs 5 || against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 6 | second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 7 | those factors outweigh the general public policy favoring disposition of cases on their merits. See 8 | Ferdik, 963 F.2d at 1263. 9 IT IS HEREBY ORDERED that the Clerk of the Court is directed to terminate defendant 10 | Sacramento County Sheriff's Department pursuant to plaintiff's consent (ECF No. 8). Fed. R. 11 | Civ. P. 41(a)(1). 12 Further, IT IS RECOMMENDED that this action be dismissed without prejudice pursuant 13 | to Federal Rule of Civil Procedure 41(b). 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 | objections shall be filed and served within fourteen days after service of the objections. The 20 | parties are advised that failure to file objections within the specified time may waive the right to 21 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: September 26, 2019 3 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 /amoa.mtd.fr 27 28