(PC) Brown v. Kishbaugh

Opinion

MARK ANTHONY BROWN, No. 2:21-cv-00149-KJM-EFB (PC) Plaintiff, v. ORDER C. KISHBAUGH, et al., Defendants. Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On August 28, 2023, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Neither party has filed objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court ///// ....°). Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. The court understands the Magistrate Judge’s conclusion that plaintiff acted “willfully” as a finding that plaintiff could have responded to discovery requests on time but did not and agrees with that assessment of the record. See Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985) (defining “willfully”). The court also agrees dismissal is an appropriate sanction for plaintiff's long delays and failures to respond despite several warnings and extensions of deadlines, even though dismissal is a severe sanction, especially in a pro se civil rights action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-63 (9th Cir. 1992) (weighing relevant factors in a similar case). Accordingly, IT IS HEREBY ORDERED that: 1. Defendants’ motion for terminating sanctions (ECF No. 45) is GRANTED; 2. All other outstanding motions are denied as moot; 3. Plaintiffs action is dismissed with prejudice; and 4. The Clerk of Court is directed to close the case. DATED: February 7, 2024.

CHIEF ED STATES DISTRICT JUDGE