(PC) Head v. County of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 2: 19-cv-1663 TLN KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al, 15 Defendants. 16 17 Plaintiff is a federal prisoner proceeding without counsel with a civil action. On March 18 10, 2023, defendants filed motions for summary judgment. (ECF Nos. 129, 130.) Plaintiff did 19 not file oppositions. On July 17, 2020, the court advised plaintiff of the requirements for 20 opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 24.) 21 See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 22 849 F.2d 409, 411-12 (9th Cir. 1988). 23 On June 13, 2023, plaintiff was ordered to file oppositions or a statement of non- 24 opposition to the pending motions within thirty days. (ECF No. 136.) In that same order, 25 plaintiff was advised of the requirements for filing an opposition to the pending motions and that 26 failure to oppose such motions would be deemed as consent to have the: (a) pending motions 27 granted; (b) action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s 28 failure to comply with these rules and a court order. (Id.) Plaintiff was also informed that failure 1 to file oppositions would result in a recommendation that this action be dismissed pursuant to 2 Rule 41(b) of the Federal Rules of Civil Procedure. (Id.) 3 The thirty day period expired and plaintiff did not respond to the court’s order. 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 considered the five 14 factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of 15 this action. The action has been pending for approximately four years and reached the stage for 16 resolution of dispositive motions and, if necessary, preparation for pretrial conference and jury 17 trial. Plaintiff’s failure to comply with the Local Rules and the court’s June 13, 2023 order 18 suggests that he abandoned this action and that further time spent by the court thereon will 19 consume scarce judicial resources in addressing litigation which plaintiff demonstrates no 20 intention to pursue. 21 Under the circumstances of this case, the third factor, prejudice to defendants from 22 plaintiff’s failure to oppose the motions, also favors dismissal. Plaintiff’s failure to oppose the 23 motions prevents defendants from addressing plaintiff’s substantive opposition, and would delay 24 resolution of this action, thereby causing defendants to incur additional time and expense. 25 The fifth factor also favors dismissal. The court advised plaintiff of the requirements 26 under the Local Rules and granted ample additional time to oppose the pending motions, all to no 27 avail. The court finds no suitable alternative to dismissal of this action. 28 //// ] The fourth factor, public policy favoring disposition of cases on their merits, weighs 2 || against dismissal of this action as a sanction. However, for the reasons set forth above, the first, 3 || second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 4 || those factors outweigh the general public policy favoring disposition of cases on their merits. See 5 || Ferdik, 963 F.2d at 1263. 6 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 7 || dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 8 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)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 || objections shall be filed and served within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 || Dated: July 24, 2023 Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 53 Head 1663.fr 24 25 26 27 28