(PC) Miller v. Hollison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIJAH LEE MILLER, No. 2:21-cv-1700 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS & RECOMMENDATIONS 14 SAM HOLLISON, 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 July 7, 2023, defendants filed a motion to revoke plaintiff’s in forma 19 pauperis status on the grounds that she was not indigent at the time this action was filed because 20 plaintiff had at least $3,100.00 in her inmate trust account. (ECF No. 42.) On May 13, 2022, the 21 court advised plaintiff that pretrial motions shall be briefed pursuant to Local Rule 230(l). (ECF 22 No. 32 at 5-6.) 23 On August 17, 2023, 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 motion would be deemed as consent to have the: (a) pending motion granted; (b) action 27 dismissed for lack of prosecution; and (c) action dismissed based on plaintiff’s failure to comply 28 with these rules and a court order. Plaintiff was also informed that failure to file an opposition 1 would result in a recommendation that this action be dismissed pursuant to Rule 41(b) of the 2 Federal Rules of Civil Procedure.1 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 two years and reached the stage, set by the court’s 16 May 13, 2022 scheduling order, and later modifications, for resolution of dispositive motions and, 17 if necessary, preparation for pretrial conference and jury trial. (ECF Nos. 32, 34, 38, & 40.) 18 Plaintiff’s failure to comply with the Local Rules and the court’s August 17, 2023 order suggests 19 that plaintiff abandoned this action and that further time spent by the court thereon will consume 20 scarce judicial resources in addressing litigation which plaintiff demonstrates no intention to 21 pursue. 22 Under the circumstances of this case, the third factor, prejudice to defendants from 23 plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the 24 motion prevents defendants from addressing plaintiff’s substantive opposition, as well as filing 25 any additional pretrial motion, and would delay resolution of this action, thereby causing 26 1 Although it appears from the file that plaintiff’s copy of the order was returned, plaintiff was 27 properly served. It is the plaintiff’s responsibility to keep the court apprised of her current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of 28 the party is fully effective. 1 | defendants to incur additional time and expense. 2 The fifth factor also favors dismissal. The court advised plaintiff of the requirements 3 || under the Local Rules and granted ample additional time to oppose the pending motion, all to no 4 | avail. The court finds no suitable alternative to dismissal of this action. 5 The fourth factor, public policy favoring disposition of cases on their merits, weighs 6 || against dismissal of this action as a sanction. However, for the reasons set forth supra, the first, 7 || second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 8 | those factors outweigh the general public policy favoring disposition of cases on their merits. See 9 || Ferdik, 963 F.2d at 1263. 10 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is 11 | directed to assign a district judge to this case; and 12 IT IS RECOMMENDED that this action be dismissed without prejudice. See Local Rule 13 | 110; Fed. R. Civ. P. 41(b). 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 || after being served with these findings and recommendations, any party may file written 17 || objections with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 || objections shall be filed and served within fourteen days after service of the objections. The 20 || parties are advised that failure to file objections within the specified time may waive the right to 21 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: October 2, 2023 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 /mill.nop.frs 27 28