(PC) Johnson v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN WILLIAM JOHNSON, No. 2:19-cv-1093 JAM KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 SPEARMAN, 15 Defendant. 16 17 Plaintiff is a former state prisoner, proceeding without counsel, with a civil rights action 18 pursuant to 42 U.S.C. § 1983. On March 16, 2020, defendant filed a motion to dismiss plaintiff’s 19 amended complaint. Plaintiff did not file an opposition. 20 On April 10, 2020, plaintiff was ordered to file an opposition or a statement of non- 21 opposition to the pending motion within thirty days. In that same order, plaintiff was advised of 22 the requirements for filing an opposition to the pending motion and that failure to oppose such a 23 motion would be deemed as consent to have the: (a) pending motion granted; (b) action 24 dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply 25 with these rules and a court order. Plaintiff was also informed that failure to file an opposition 26 would result in a recommendation that this action be dismissed pursuant to Rule 41(b) of the 27 Federal Rules of Civil Procedure. 28 //// 1 The thirty-day period has now expired and plaintiff has not responded to the court’s order. 2 Previously, on December 12, 2019, plaintiff was ordered to promptly move to conduct 3 limited discovery to identify the defendants named as John Does 1 to 4; plaintiff failed to do so. 4 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 5 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 considered the 14 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal 15 of this action. The action has been pending for almost one year, and defendant has filed a motion 16 to dismiss that is well-taken. Plaintiff’s failure to comply with the Local Rules and the court’s 17 April 10, 2020 order suggests that he has abandoned this action and that further time spent by the 18 court thereon will consume scarce judicial resources in addressing litigation which plaintiff 19 demonstrates no intention to pursue. 20 Under the circumstances of this case, the third factor, prejudice to defendant from 21 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 22 motion prevents defendant from addressing plaintiff’s substantive opposition, and would delay 23 resolution of this action, thereby causing defendant to incur additional time and expense. 24 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 25 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 26 avail. The court finds no suitable alternative to dismissal of this action. 27 The fourth factor, public policy favoring disposition of cases on their merits, weighs 28 against dismissal of this action as a sanction. However, for the reasons set forth above, the first, wOASe 2 LDV LYE YOO EAINTT IN RATIO Ot POC te OY VV VI 1 | second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 2 | those factors outweigh the general public policy favoring disposition of cases on their merits. See 3 | Ferdik, 963 F.2d at 1263. 4 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 5 | dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 8 | being served with these findings and recommendations, any party may file written objections with 9 | the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 | objections shall be filed and served within fourteen days after service of the objections. The 12 | parties are advised that failure to file objections within the specified time may waive the right to 13 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: May 19, 2020 i Fensbl A Abar 16 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 17 jotm1093.mtd.nop 18 19 20 21 22 23 24 25 26 27 28