(PC) Snowden v. Scott

Opinion

CURTIS SNOWDEN, III, No. 2:22-cv-1444-DJC-SCR P Plaintiff, v. ORDER AND A. SCOTT, et al., FINDINGS AND RECOMMENDATIONS Defendants. Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds with claims under the Eighth Amendment against defendants Scott, Jones, Yang, and Arnett. (See ECF No. 5.) Defendants Scott, Jones, and Yang answered the complaint. (ECF Nos. 39, 40.) On August 8, 2024, defendant Arnett filed a motion to dismiss. On September 9, 2024, plaintiff was ordered to file an opposition, if any, to the pending motion to dismiss within 30 days. Plaintiff was cautioned that failure to file a written opposition to the motion to dismiss would result in a recommendation that plaintiff’s claim against Arnett be dismissed. The time period granted has expired, and plaintiff has not filed an opposition or otherwise responded to the court’s order. In recommending plaintiff’s claim against defendant Arnett be dismissed for failure to prosecute, the court has considered “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (citation omitted). These factors weigh in favor of dismissing the claim against Arnett. In addition, this case cannot proceed against any defendant without plaintiff’s participation. In the order filed on September 9, 2024, plaintiff was cautioned, and is hereby cautioned again, that failure to comply with the court’s Local Rules or an order of the court is a ground for sanctions, up to and including an involuntary dismissal of the case. (ECF No. 42 at 1- 2.) Before the court issues a further schedule for this case, including deadlines for discovery and dispositive motions, the court will require a response from plaintiff. For the foregoing reasons, IT IS ORDERED that plaintiff shall show cause in writing and within 14 days why this entire action should not be dismissed for failure to prosecute; if plaintiff responds that plaintiff intends to prosecute this case against defendants Scott, Jones, and Yang, then the court will discharge the order to show cause and set a further schedule for this case. In addition, IT IS RECOMMENDED as follows: 1. Plaintiff’s claim against defendant Arnett be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and defendant Arnett be terminated as a defendant; and 2. Defendant Arnett’s motion to dismiss (ECF Nos. 38, 43) be denied as moot. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that //// //// //// //// //// failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). DATED: November 8, 2024 ponrbolne > SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 1]