(PC) Donaldson v. Garland ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JULIUS DONALDSON, No. 2:21-cv-1178 DJC KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 Plaintiff is a former federal prisoner proceeding pro se with an action under Bivens v. Six 18 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On February 7, 19 2024, plaintiff was ordered to file, within thirty days, an opposition to defendants’ motion for 20 summary judgment, and cautioned that failure to do so would result in a recommendation that this 21 action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Thirty days 22 have now passed, and plaintiff has not filed an opposition or otherwise responded to the order. 23 As set forth below, the undersigned recommends that this action be dismissed. 24 A. Legal Standard 25 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 26 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 27 within the inherent power of the Court.” Id. District courts have the inherent power to control 28 their dockets and “[i]n the exercise of that power they may impose sanctions including, where 1 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 2 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 4 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 5 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 6 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130-33 (9th Cir. 1987) 7 (dismissal for failure to comply with court order). 8 In determining whether to dismiss an action, the Court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 10 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. Ferdik, 963 F.2d at 1260- 12 61; Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 13 1440 (9th Cir. 1988). 14 B. Discussion 15 This action was filed on June 29, 2021, and a discovery and scheduling order issued on 16 February 28, 2023. Discovery is closed, and on January 5, 2024, defendants filed a motion for 17 summary judgment. Plaintiff did not file an opposition, and despite being granted an additional 18 thirty days in which to oppose the motion, has again failed to file one. On this record, the 19 undersigned finds that both the first and second Ferdik factors weigh in favor of dismissal. The 20 court cannot effectively manage its docket if plaintiff stops litigating his case, and such failure 21 prevents an expeditious resolution of this action. In re Phenylpropanolamine (PPA) Products 22 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (district courts “have an inherent power 23 to control their dockets.”). “The public’s interest in expeditious resolution of litigation always 24 favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. 25 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 26 The third factor, risk of prejudice to defendants, also weighs in favor of dismissal since a 27 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 28 Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). ] The fourth factor usually weighs against dismissal because public policy favors 2 | disposition on the merits. Pagtalunan, 291 F.3d at 643. However, “this factor lends little support 3 || to a party whose responsibility it is to move a case toward disposition on the merits but whose 4 || conduct impedes progress in that direction,” which is the case here. In re Phenylpropanolamine, 5 || 460 F.3d at 1228 (citation omitted). 6 Finally, the court’s warning to a plaintiff that failure to obey the court’s order will result in 7 || dismissal satisfies the consideration of less drastic sanctions requirement. Ferdik, 963 F.2d at 8 || 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The February 7, 2024 order 9 || expressly warmed plaintiff that his failure to file an opposition would result in a recommendation 10 || that this action be dismissed. At this stage of the proceedings, there are no lesser sanctions the 11 || court could impose while protecting the Court from further unnecessary expenditure of its scarce 12 || resources. Plaintiff proceeds in forma pauperis, which makes the imposition of monetary 13 || sanctions ineffective, and the preclusion of evidence or witnesses would have little impact in a 14 || case where plaintiff has stopped litigating. 15 The undersigned finds that evaluation of the Ferdik factors weighs in favor of dismissing 16 || this action. 17 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 | after being served with these findings and recommendations, any party may file written 21 || objections with the court and serve a copy on all parties. Such a document should be captioned 22 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 || objections shall be filed and served within fourteen days after service of the objections. The 24 || parties are advised that failure to file objections within the specified time may waive the right to 25 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 26 | Dated: March 18, 2024 □□ / dp ai 7 CAROLYNK. DELANEY 28 | jdonal178.57F UNITED STATES MAGISTRATE JUDGE