United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 34, 41
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
court recommends that this action be dismissed due to
Plaintiff's failure to prosecute the case, and that
Defendants' pending motion for summary judgment be denied
was an inmate in the custody of the Nevada Department of
Corrections (NDOC) when he filed this action under 42 U.S.C.
§ 1983. According to Defendants, Plaintiff was released
on parole on January 31, 2018.
filed a notice with the court on January 18, 2018, indicating
he would be released that date and provided the court with
his new address. (ECF No. 9.) He also stated he would attend
the early mediation conference in person. Plaintiff
participated in the early mediation conference on February 6,
2018, but a settlement was not reached. (ECF No. 10.)
filed a motion for summary judgment on October 15, 2018, that
was served on Plaintiff at his new address of record. (ECF
No. 34.) Plaintiff did not timely file a response. On January
4, 2019, the court issued a minute order giving Plaintiff an
extension until January 24, 2019, to file a response.
April 22, 2019, Plaintiff had not filed a response. As a
result, the court issued an order to show cause and gave
Plaintiff fourteen days to file and serve a notice of intent
to prosecute his action and a response to Defendants'
motion for summary judgment. He was advised that a failure to
do so would result in a recommendation that his action be
dismissed with prejudice for failure to prosecute under
Federal Rule of Civil Procedure 41(b) and Local Rule 41-1.
date, Plaintiff has not filed a response to the order to show
cause, or a response to Defendants' pending motion for
summary judgment. Plaintiff has not otherwise communicated
with the court indicating an intent to proceed with this
Rule of Civil Procedure 41(b) permits dismissal of an action
for the failure to prosecute or comply with rules or a court
order. Fed.R.Civ.P. 41(b).). In addition, Local Rule 41-1
provides that a civil action that has been pending for more
than 270 days without any proceeding of record may, after
notice, be dismissed for want of prosecution by the court sua
been 478 days since Plaintiff participated in the
unsuccessful early mediation conference, and 227 days since
Defendants filed and served their motion for summary
judgment. Plaintiff has not indicated that he intends to
continue to prosecute this action despite being given
multiple extensions of time to respond to the motion and to
respond to the order to show cause.
considering whether to dismiss a pro se plaintiff's
action on this basis, the court considers: “(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 sanctions.” Carey
v. King, 856 F.2d 1439, 1440 (9th Cir. 1998).
the public has an interest in expeditious resolution of
litigation. Plaintiff's failure to participate in his
lawsuit impedes this goal. ...