(PC) Harris v. Pongyang ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM JAMES HARRIS, No. 2: 21-cv-0846 TLN KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 CAPTAIN PONGYAN, 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. For the reasons stated herein, the undersigned recommends that this action 19 be dismissed. 20 On October 21, 2022, defendant filed a motion for summary judgment on the merits of 21 plaintiff’s claims and on the grounds that plaintiff failed to exhaust administrative remedies. 22 (ECF No. 48.) 23 On March 28, 2022, and October 21, 2022 (ECF Nos. 41, 48-3), plaintiff was advised of 24 the requirements for opposing a motion for summary judgment based on plaintiff’s failure to 25 exhaust administrative remedies pursuant to Rule 56 of the Federal Rules of Civil Procedure. See 26 Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 27 F.2d 409, 411-12 (9th Cir. 1988). 28 //// 1 On November 29, 2022, plaintiff was ordered to file an opposition or a statement of non- 2 opposition to the pending motion within thirty days. (ECF No. 49.) In that same order, plaintiff 3 was advised of the requirements for filing an opposition to the pending motion and that failure to 4 oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b) 5 action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to 6 comply with these rules and a court order. Plaintiff was also informed that failure to file an 7 opposition would result in a recommendation that this action be dismissed pursuant to Rule 41(b) 8 of the Federal Rules of Civil Procedure. 9 The thirty day period expired and plaintiff did not respond to the court’s order. 10 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 11 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 12 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 13 court order the district court must weigh five factors including: ‘(1) the public’s interest in 14 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 15 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 16 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 17 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 18 F.3d 52, 53 (9th Cir. 1995). 19 In determining whether to recommend dismissal of this action, the court considers the five 20 factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of 21 this action. The action has been pending for approximately one and one-half years and reached 22 the stage, set by the court’s March 28, 2022 scheduling order, for resolution of dispositive 23 motions. (ECF No. 41.) Plaintiff’s failure to comply with the Local Rules and the court’s 24 November 29, 2022 order suggests that he abandoned this action and that further time spent by 25 the court thereon will consume scarce judicial resources in addressing litigation which plaintiff 26 demonstrates no intention to pursue. 27 Under the circumstances of this case, the third factor, prejudice to defendant from 28 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 1 | motion prevents defendant from addressing plaintiffs substantive opposition, and would delay 2 || resolution of this action, thereby causing defendant to incur additional time and expense. 3 The fifth factor also favors dismissal. The court advised plaintiff of the requirements 4 || under the Local Rules and granted ample additional time to oppose the pending motion, all to no 5 || avail. The court finds no suitable alternative to dismissal of this action. 6 The fourth factor, public policy favoring disposition of cases on their merits, weighs 7 || against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 8 || second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 9 || those factors outweigh the general public policy favoring disposition of cases on their merits. See 10 | Ferdik, 963 F.2d at 1263. 11 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 12 || dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 || after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 || objections shall be filed and served within fourteen days after service of the objections. The 19 || parties are advised that failure to file objections within the specified time may waive the right to 20 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: January 12, 2023 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 25 26 7 Harr846.fr 28