(PC) Birrell v. DiTomas

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 David Wesley Birrell, aka No. 2:22-cv-01528-KJM-EFB Bella-Christina Birrell, 12 ORDER B Plaintiff, 14 v: 15 Michele DiTomas, et al., 16 Defendants.

18 Plaintiff Bella~Christina Birrell! is incarcerated. She alleges in this action that the chief | medical officer at the state prison where she was incarcerated, along with a staff physician and | correctional lieutenant, subjected her to cruel and unusual punishment by taking the power cord | for her continuous positive air pressure (C-PAP) machine. See Compl. {J 39-41. The case was | referred to the assigned Magistrate Judge for all pretrial matters under this District’s Local Rules.

23 | See E.D. Cal. L.R. § 302(c). Discovery has closed, and defendants seek summary judgment. See | generally Mot, ECF No. 25.

25 | ///I/ ' According to the complaint, plaintiff uses feminine pronouns. Compl. § 4, ECF No. 1.

The court has done the same in this order.

1 After defendants filed their pending motion, Birrell twice requested and received extensions of time to prepare and file her opposition. See generally Order (June 13, 2024), ECF No. 28; Order (Aug. 16, 2024), ECF No. 30. She then asked the Magistrate Judge to appoint an attorney to represent her because she is indigent and, in her view, cannot adequately respond to defendants’ arguments and evidence without the assistance of counsel. See generally Mot.

6 Appoint Counsel, ECF No. 31. She also claimed that defendants had wrongfully surprised her with previously undisclosed medical opinions. See id. at 4. The Magistrate Judge denied her motion but granted her a further extension of time to file her opposition, and the Magistrate Judge confirmed she could contend again in her opposition that defendants had wrongfully withheld evidence. See generally Order (Jan. 27, 2025), ECF No. 32. Birrell did not file an opposition by the deadline. The Magistrate Judge now recommends dismissing the action for lack of prosecution. See generally F&Rs, ECF No. 34. No party filed objections.

13 The court declines to adopt the findings and recommendations. “[D]ismissal is a harsh remedy and, therefore, it should only be imposed in extreme circumstances.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (emphasis omitted) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)). Birrell does not appear to have violated any court orders, and it appears the only lack of prosecution on her part is the absence of any opposition to the pending motion. The five factors this court must consider before imposing dismissal as a sanction also weigh in favor of moving forward to address the pending motion for summary judgment on the merits: (1) the court can ensure this case is resolved expeditiously by acting on that motion, which is now fully briefed; (2) resolving that motion will not prevent this court from managing its docket; (3) the risk of prejudice to defendants is unclear and does not favor outright dismissal heavily, if at all, as it is their pending motion that is currently at issue; (4) public policy favors the resolution of this case on its merits; and (5) less drastic sanctions are available, including the enforcement of Local Rule 230(c), which governs oppositions to motions. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226–29 (9th Cir. 2006) (listing and discussing these factors and their purposes).

1 In sum, the court declines to adopt the findings and recommendations (ECF No. 34) and | refers the matter back to the assigned Magistrate Judge for all further pretrial proceedings.

3 IT IS SO ORDERED.

4 DATED: May 15, 2025. oUt 5 iA | Y ees STATES DISTRICT JUDGE