(PC) Morris v. Modhaddam ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CONDALEE MORRIS, No. 2: 18-cv-2850 MCE KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 G. MODHADDAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On June 1, 2021, defendant Moghaddam filed a motion for summary 19 judgment. Plaintiff did not file an opposition.1 On October 26, 2020, the court advised plaintiff 20 of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil 21 Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. 22 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 23 On July 12, 2021, plaintiff was ordered to file an opposition or a statement of non- 24 opposition to the pending motion within thirty days. In that same order, plaintiff was advised of 25 the requirements for filing an opposition to the pending motion and that failure to oppose such a 26 27 1 On June 14, 2021, the court granted the motions for summary judgment filed by defendants Bishop and Tesluk. (ECF No. 100.) Defendant Moghaddam is the remaining defendant in this 28 action. 1 motion would be deemed as consent to have the: (a) remaining claims against defendant 2 Moghaddam dismissed for lack of prosecution; and b) the remaining claims against defendant 3 Moghaddam dismissed based on plaintiff’s failure to comply with these rules and a court order. 4 Plaintiff was also informed that failure to file an opposition would result in a recommendation 5 that this action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 6 The thirty day period expired and plaintiff did not respond to the court’s order. 7 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 8 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 9 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 10 court order the district court must weigh five factors including: ‘(1) the public’s interest in 11 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 12 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 13 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 14 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 15 F.3d 52, 53 (9th Cir. 1995). 16 In determining to recommend that this action be dismissed, the court considered the five 17 factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of 18 this action. The action has been pending for almost three years and reached the stage, set by the 19 court’s June 10, 2020 scheduling order, for resolution of dispositive motions. Plaintiff’s failure to 20 comply with the Local Rules and the court’s July 12, 2021 order suggests that he abandoned this 21 action and that further time spent by the court thereon will consume scarce judicial resources in 22 addressing litigation which plaintiff demonstrates no intention to pursue. 23 Under the circumstances of this case, the third factor, prejudice to defendant Moghaddam 24 from plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose 25 the motion prevents defendant from addressing plaintiff’s substantive opposition, and would 26 delay resolution of this action, thereby causing defendant to incur additional time and expense. 27 The fifth factor also favors dismissal. The court advised plaintiff of the requirements 28 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 1 |} avail. The court finds no suitable alternative to dismissal of this action. 2 The fourth factor, public policy favoring disposition of cases on their merits, weighs 3 || against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 4 || second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 5 || those factors outweigh the general public policy favoring disposition of cases on their merits. See 6 || Ferdik, 963 F.2d at 1263. 7 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 8 | dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 || objections shall be filed and served within fourteen days after service of the objections. The 15 || parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: August 18, 2021 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 21 22 Mo2850. fr 23 24 25 26 27 28