1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, No. 2:22-cv-01528-KJM-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MICHELE DiTOMAS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983 alleging an Eighth Amendment claim for deliberate indifference to serious medical 19 needs. On May 10, 2024, defendants filed a motion for summary judgment. On June 13, 2024, 20 the court granted plaintiff’s request for an extension of time until August 10, 2024 to file an 21 opposition to the motion. But rather than filing an opposition, plaintiff sought another extension. 22 The court granted that request and allowed plaintiff until September 16, 2024 to oppose summary 23 judgment. But, again, plaintiff failed to file an opposition and instead, on September 4, 2024, 24 filed a motion to appoint counsel. On January 27, 2025, the court denied without prejudice 25 plaintiff’s motion to appoint counsel but granted additional time until February 7, 2025 to file his 26 opposition to the summary judgment motion. Plaintiff has not responded to that order and has 27 still not filed his opposition to the motion. 28 //// 1 A court may dismiss an action based on a party’s failure to prosecute the case. See 2 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). The court must consider five factors 3 in determining whether to dismiss for lack of prosecution: “(1) the public’s interest in expeditious 4 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 5 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 6 availability of less drastic sanctions.” Id. at 1423. The case may be dismissed where at least four 7 factors support dismissal, or where three factors strongly support dismissal. Hernandez v. City of 8 El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citing Malone v. United States Postal Serv., 833 9 128, 133 & n.2 (9th Cir. 1987) and Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). 10 “Cases involving sua sponte dismissal merit special focus on considerations relating to the fifth 11 Henderson factor.” Id. (citing Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992)). 12 As to the first Henderson factor, “[t]he public’s interest in expeditious resolution of 13 litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 14 1999). This case is no exception. 15 As to the second Henderson factor, the trial court is in the best position to determine when 16 a litigant’s unresponsiveness interferes with docket management. Id.; Pagtalman v. Galaza, 291 17 F.3d 639, 642 (9th Cir. 2002). Defendants’ motion for summary judgment has been pending for 18 over nine months. Plaintiff has not responded despite three extensions of time. The deadline set 19 by the third extension has passed and plaintiff has failed to respond or to file any other pleading. 20 Plaintiff’s lack of response has interfered, and continues to interfere, with the court’s ability to 21 manage its docket. This factor weighs strongly in favor of dismissal. 22 As to the third Henderson factor, the court cannot fully assess the question of prejudice to 23 defendants. Pendency of a lawsuit is not in and of itself prejudicial, and limited delays “are 24 realities of the system that have to be accepted, provided the prejudice is not compounded by 25 unreasonable delays.” Pagtalunan, 281 F.3d at 642 (citation and internal quotation marks 26 omitted). However, a nontrivial length of time has already elapsed since defendants filed their 27 motion for summary judgment. Also, “the risk of prejudice to the defendant is related to the 28 strength of the plaintiff’s excuse” for noncompliance. Stone v. City of Tucson, 249 F.R.D. 326, 1 328 (D. Ariz. 2008) (citations and internal quotation marks omitted). Plaintiff has not filed any 2 pleading explaining the failure to comply with the court’s third extension of time, and so has not 3 shown any strong excuse that would counter prejudice to defendants. Plaintiff’s first two requests 4 for additional time cited limited access to the law library, and that plaintiff had been ill during the 5 month of July 2024 but was sufficiently recovered to proceed as of August 2024. Those concerns 6 do not appear to excuse compliance with the most recent deadline. The Ninth Circuit has 7 affirmed dismissal where the plaintiff has disregarded “deadlines, warnings, and schedules set by 8 the district court” and even though there is no specific showing of prejudice to defendants, 9 because a lack of prejudice to defendants is not determinative in such circumstances. Id. (quoting 10 Henderson, 779 F.2d at 1425). Plaintiff has failed to comply with: (1) Local Rule 230(c) 11 requiring timely response to a motion for summary judgment; as well as (2) the extended deadline 12 set by the court. The court warned plaintiff when it granted the second extension of time for 13 response that “[n]o further extensions of time will be granted absent a showing of extraordinary 14 circumstances.” ECF No. 30. The court repeated the same warning when it granted the third 15 extension of time. ECF No. 32. This factor weighs strongly in favor of dismissal. 16 As to the fourth Henderson factor, the public policy favoring disposition of cases on their 17 merits weighs against dismissal. Hernandez, 138 F.3d at 399. This case is no exception. 18 As to the fifth Henderson factor, the court has already granted three extensions of time for 19 plaintiff to respond to defendants’ motion and has twice advised plaintiff that any additional 20 extension would require a showing of extraordinary circumstances. Plaintiff has not explained 21 nor shown any extraordinary circumstances that would support any further extension of time. 22 The court will recommend that this case be dismissed without prejudice as it is a less drastic 23 alternative than dismissal with prejudice. As another alternative to dismissal, the court is 24 allowing plaintiff to choose to file a response to defendants’ motion for summary judgment in lieu 25 of dismissal. For these reasons, this factor weighs strongly in favor of dismissal. 26 In sum, the Henderson factors weigh in favor of dismissal without prejudice, and at least 27 three factors weigh strongly in favor of dismissal. Accordingly, it is hereby RECOMMENDED 28 that: ] 1. The case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 2 41(b); and 3 2. The Clerk of Court be directed to administratively terminate all pending motions and 4 close the case. 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.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, No. 2:22-cv-01528-KJM-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MICHELE DiTOMAS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983 alleging an Eighth Amendment claim for deliberate indifference to serious medical 19 needs. On May 10, 2024, defendants filed a motion for summary judgment. On June 13, 2024, 20 the court granted plaintiff’s request for an extension of time until August 10, 2024 to file an 21 opposition to the motion. But rather than filing an opposition, plaintiff sought another extension. 22 The court granted that request and allowed plaintiff until September 16, 2024 to oppose summary 23 judgment. But, again, plaintiff failed to file an opposition and instead, on September 4, 2024, 24 filed a motion to appoint counsel. On January 27, 2025, the court denied without prejudice 25 plaintiff’s motion to appoint counsel but granted additional time until February 7, 2025 to file his 26 opposition to the summary judgment motion. Plaintiff has not responded to that order and has 27 still not filed his opposition to the motion. 28 //// 1 A court may dismiss an action based on a party’s failure to prosecute the case. See 2 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). The court must consider five factors 3 in determining whether to dismiss for lack of prosecution: “(1) the public’s interest in expeditious 4 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 5 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 6 availability of less drastic sanctions.” Id. at 1423. The case may be dismissed where at least four 7 factors support dismissal, or where three factors strongly support dismissal. Hernandez v. City of 8 El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citing Malone v. United States Postal Serv., 833 9 128, 133 & n.2 (9th Cir. 1987) and Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). 10 “Cases involving sua sponte dismissal merit special focus on considerations relating to the fifth 11 Henderson factor.” Id. (citing Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992)). 12 As to the first Henderson factor, “[t]he public’s interest in expeditious resolution of 13 litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 14 1999). This case is no exception. 15 As to the second Henderson factor, the trial court is in the best position to determine when 16 a litigant’s unresponsiveness interferes with docket management. Id.; Pagtalman v. Galaza, 291 17 F.3d 639, 642 (9th Cir. 2002). Defendants’ motion for summary judgment has been pending for 18 over nine months. Plaintiff has not responded despite three extensions of time. The deadline set 19 by the third extension has passed and plaintiff has failed to respond or to file any other pleading. 20 Plaintiff’s lack of response has interfered, and continues to interfere, with the court’s ability to 21 manage its docket. This factor weighs strongly in favor of dismissal. 22 As to the third Henderson factor, the court cannot fully assess the question of prejudice to 23 defendants. Pendency of a lawsuit is not in and of itself prejudicial, and limited delays “are 24 realities of the system that have to be accepted, provided the prejudice is not compounded by 25 unreasonable delays.” Pagtalunan, 281 F.3d at 642 (citation and internal quotation marks 26 omitted). However, a nontrivial length of time has already elapsed since defendants filed their 27 motion for summary judgment. Also, “the risk of prejudice to the defendant is related to the 28 strength of the plaintiff’s excuse” for noncompliance. Stone v. City of Tucson, 249 F.R.D. 326, 1 328 (D. Ariz. 2008) (citations and internal quotation marks omitted). Plaintiff has not filed any 2 pleading explaining the failure to comply with the court’s third extension of time, and so has not 3 shown any strong excuse that would counter prejudice to defendants. Plaintiff’s first two requests 4 for additional time cited limited access to the law library, and that plaintiff had been ill during the 5 month of July 2024 but was sufficiently recovered to proceed as of August 2024. Those concerns 6 do not appear to excuse compliance with the most recent deadline. The Ninth Circuit has 7 affirmed dismissal where the plaintiff has disregarded “deadlines, warnings, and schedules set by 8 the district court” and even though there is no specific showing of prejudice to defendants, 9 because a lack of prejudice to defendants is not determinative in such circumstances. Id. (quoting 10 Henderson, 779 F.2d at 1425). Plaintiff has failed to comply with: (1) Local Rule 230(c) 11 requiring timely response to a motion for summary judgment; as well as (2) the extended deadline 12 set by the court. The court warned plaintiff when it granted the second extension of time for 13 response that “[n]o further extensions of time will be granted absent a showing of extraordinary 14 circumstances.” ECF No. 30. The court repeated the same warning when it granted the third 15 extension of time. ECF No. 32. This factor weighs strongly in favor of dismissal. 16 As to the fourth Henderson factor, the public policy favoring disposition of cases on their 17 merits weighs against dismissal. Hernandez, 138 F.3d at 399. This case is no exception. 18 As to the fifth Henderson factor, the court has already granted three extensions of time for 19 plaintiff to respond to defendants’ motion and has twice advised plaintiff that any additional 20 extension would require a showing of extraordinary circumstances. Plaintiff has not explained 21 nor shown any extraordinary circumstances that would support any further extension of time. 22 The court will recommend that this case be dismissed without prejudice as it is a less drastic 23 alternative than dismissal with prejudice. As another alternative to dismissal, the court is 24 allowing plaintiff to choose to file a response to defendants’ motion for summary judgment in lieu 25 of dismissal. For these reasons, this factor weighs strongly in favor of dismissal. 26 In sum, the Henderson factors weigh in favor of dismissal without prejudice, and at least 27 three factors weigh strongly in favor of dismissal. Accordingly, it is hereby RECOMMENDED 28 that: ] 1. The case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 2 41(b); and 3 2. The Clerk of Court be directed to administratively terminate all pending motions and 4 close the case. 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.” Failure to file objections 10 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 12 13 || Dated: February 24, 2025 Zot! "Uti LA EDMUND F. BRENNAN 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28