(PC) Farha v. Foss ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAUWAI FARHA, No. 2:20-cv-2206 KJM KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 FOSS, 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 August 1, 2023, defendants filed a motion to dismiss. 19 On August 30, 2023, plaintiff was ordered to file an opposition or a statement of non- 20 opposition to the pending motion within thirty days. (ECF No. 68.) In that same order, plaintiff 21 was advised of the requirements for filing an opposition to the pending motion and that failure to 22 oppose such a motion would be deemed as consent to have the: (a) pending motion granted; (b) 23 action dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to 24 comply with these rules and a court order. Plaintiff was also informed that failure to file an 25 opposition would result in a recommendation that this action be dismissed pursuant to Rule 41(b) 26 of the Federal Rules of Civil Procedure. 27 On October 16, 2023, plaintiff was granted an additional thirty days to file an opposition. 28 (ECF No. 70.) On November 21, 2023, plaintiff was granted another thirty days in which to file 1 an opposition to the motion to dismiss. (ECF No. 72.) The thirty-day period expired, and 2 plaintiff did not file an opposition or otherwise respond to the court’s order. 3 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 4 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 5 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 6 court order the district court must weigh five factors including: ‘(1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 9 and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting 10 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 11 F.3d 52, 53 (9th Cir. 1995). 12 In determining to recommend that this action be dismissed, the court considered the five 13 factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of 14 this action. The action has been pending for over four years and defendants’ dispositive motion 15 has been pending over four months. Plaintiff’s failure to comply with the Local Rules and the 16 court’s August 30, 2023 order suggests that he abandoned this action and that further time spent 17 by the court thereon will consume scarce judicial resources in addressing litigation which plaintiff 18 demonstrates no intention to pursue. 19 Under the circumstances of this case, the third factor, prejudice to defendants from 20 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 21 motion prevents defendants from addressing plaintiff’s substantive opposition, and would delay 22 resolution of this action, thereby causing defendants to incur additional time and expense. 23 The fifth factor also favors dismissal. The court advised plaintiff of the requirements 24 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 25 avail. The court finds no suitable alternative to dismissal of this action. 26 The fourth factor, public policy favoring disposition of cases on their merits, weighs 27 against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 28 second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 1 | those factors outweigh the general public policy favoring disposition of cases on their merits. See 2 | Ferdik, 963 F.2d at 1263. 3 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 4 || dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be filed and served within fourteen days after service of the objections. The 11 || parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 || Dated: December 27, 2023 i Aectl Aharon 15 KENDALL J. NE /farh2206.nop.mtd.fi UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28