(PC) Newsome v. Mohmand ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHELDON RAY NEWSOME, No. 2:23-cv-0151 CKD P 12 Plaintiff, 13 v. ORDER 14 F. MOHMAND, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Both parties have consented to have all matters in this action before a United 19 States Magistrate Judge. See 28 U.S.C. § 636(c). 20 On July 16, 2024, defendant Mohmand (defendant) filed a motion to compel plaintiff to 21 provide responses to certain requests for discovery. On August 20, 2024, because plaintiff had 22 not responded to the motion, plaintiff was ordered to file a response. The court extended the 23 deadline to file a response to November 8, 2024, following plaintiff’s October 2, 2024, request for 24 more time. Despite plaintiff being specifically warned that failure to file a response to the motion 25 to compel could result in dismissal pursuant to Fed. R. Civ. P. 41(b), plaintiff has not filed a 26 response. 27 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 28 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1 1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a 2 court order the district court must weigh five factors including: ‘(1) the public's interest in 3 expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 4 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 5 (5) the availability of less drastic alternatives.’ ” Ferdik, 963 F.2d at 1260-61 (quoting Thompson 6 v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)). 7 The first two factors support dismissal. Plaintiff has significantly delayed discovery by 8 his failure to respond to defendant’s pending motion and the court should not waste limited 9 judicial resources on a litigant who refuses to cooperate in discovery or follow directions 10 concerning discovery. 11 The third factor, prejudice to defendant from plaintiff's failure to oppose the discovery 12 motion, also favors dismissal. Plaintiff’s refusal to cooperate results in added litigation costs to 13 defendant and in defendant being foreclosed from information to which he may be entitled to 14 defend against the remaining claims. 15 The fifth factor favors dismissal. Defendant is entitled to engage in discovery. There is 16 no other alternative to dismissal if a plaintiff refuses to participate. 17 While public policy favoring disposition of cases on their merits weighs against dismissal 18 of this action as a sanction, this one factor does not outweigh the remaining ones which all 19 strongly support dismissal. See Ferdik, 963 F.2d at 1263. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Defendant Mohmand’s July 16, 2024, motion to compel (ECF No. 50) is denied as 22 moot; and 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 2. This action is dismissed pursuant to Federal Rule of Civil Procedure 41(b). 2 || Dated: November 26, 2024 Card Kt | / ye □□□ 3 CAROLYNK.DELANEY 4 UNITED STATES MAGISTRATE JUDGE 5]. 6 7H g news0151.41(b) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28