(PC) Boone v. Ruby ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICKY BOONE, No. 2:20-cv-02100 WBS SCR P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 RUBY, et al., 15 Defendants. 16 17 On April 4, 2024, defendants filed a motion for summary judgment. Plaintiff did not 18 timely oppose the motion. By order filed on May 8, 2024, plaintiff was granted an extension of 19 time of 30 additional days from the date of the order to file an opposition. Plaintiff did not oppose 20 the motion within the time granted, and on July 10, 2024, the magistrate judge previously 21 assigned to this case recommended the case be dismissed for plaintiff’s failure to oppose the 22 motion for summary judgment. (ECF No. 58.) 23 Plaintiff filed objections to the findings and recommendations, requesting a 60-to-90-day 24 extension of time to oppose the motion for summary judgment. (ECF No. 60.) Plaintiff stated he 25 was in an accident in a correctional van on August 3, 2023, and that after the accident, he did not 26 get his property back until sometime after June 25, 2024. (Id.) Defendants opposed the motion, 27 arguing, in relevant part, that the request for extension of time should be denied because plaintiff 28 testified during his deposition on December 27, 2023, that he had his legal property in his cell, 1 including witness statements, affidavits, declarations, video footage, and other documents 2 relevant to this case. (ECF No. 61 at 3.) On August 20, 2024, the undersigned granted plaintiff’s 3 request for an extension of time in part and ordered plaintiff to file an opposition to defendants’ 4 motion for summary judgment within 30 days. (ECF No. 61.) Plaintiff did not do so. 5 More than seven months have passed since defendants filed their motion for summary 6 judgment. More than a month has passed since the expiration of the court’s most recent extension 7 of time expired. Plaintiff has not opposed the motion or sought a further extension of time. Local 8 Rule 230(l) provides in part: “Failure of the responding party to file written opposition or to file a 9 statement of no opposition may be deemed a waiver of any opposition to the granting of the 10 motion....” Further, Local Rule 110 provides that failure to comply with the Local Rules “may be 11 grounds for imposition of any and all sanctions authorized by statute or Rule or within the 12 inherent power of the Court.” 13 In the order filed on May 8, 2024, plaintiff was advised of the above requirements for 14 filing opposition under the Local Rules and was cautioned that failure to comply with the Local 15 Rules might result in the imposition of sanctions. In addition, plaintiff was cautioned that failure 16 to file opposition would be deemed consent to have the action dismissed for lack of prosecution 17 and would result in a recommendation that this action be dismissed. 18 Plaintiff has failed to oppose the motion for summary judgment and has not responded to 19 the court’s most recent order dated August 20, 2024. In recommending this action be dismissed 20 for failure to prosecute, the court has considered “(1) the public’s interest in expeditious 21 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 22 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 23 availability of less drastic alternatives.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 24 1992) (citation omitted). Because this case cannot move forward without plaintiff’s participation, 25 the factors weigh in favor of dismissal. 26 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 27 dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 28 These findings and recommendations are submitted to the United States District Judge 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after 2 || being served with these findings and recommendations, any party may file written objections with 3 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 5 || filed and served within fourteen days after service of the objections. The parties are advised that 6 || failure to file objections within the specified time may waive the right to appeal the District 7 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 8 || DATED: November 8, 2024 fonfob— 10 SEAN C. RIORDAN 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28