Page 1 – FINDINGS AND RECOMENDATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

JOHN M. WASSON, Case No. 2:15-cv-01279-SU

Plaintiff, FINDINGS AND

v. RECOMMENDATION

 

UNITED STATES, ROBERT

VARNER, BRETT THOMAS, IAN

REID, CHRIS HELBERG, JON

MAYTE, DEWAYNE ROSS,

KEVIN JOHNSON, and

KATHLEEN M. ANDERS,

 

Defendants.

_______________________________________

SULLIVAN, United States Magistrate Judge:

On February 1, 2017, the Court issued to plaintiff John M. Wasson an Order to Show 

Cause why it should not grant defendant Chris (Christine) Helberg’s Motion to Dismiss, due to 

plaintiff’s failure to oppose that Motion. Plaintiff’s response to the Order was due February 22, 

2017. Plaintiff has submitted none. Accordingly, pursuant to its admonition in its Order to 

Show Cause, the Court should GRANT Helberg’s Motion to Dismiss, with prejudice, due to 

plaintiff’s failure to oppose that Motion and failure to respond to the Order to Show Cause.
Page 2 – FINDINGS AND RECOMENDATION

BACKGROUND

This action is one of several recent and related proceedings involving plaintiff. The 

Court will not recite the full history herein, as prior Court documents amply detail this history. 

See Findings & Recommendation, at 2-5 (Docket No. 45); Order, at 2-5 (Docket No. 52). 

On December 5, 2016, plaintiff filed a Second Amended Complaint. (Docket No. 54). 

Among various claims, he brought a claim against defendant Helberg under Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of 

his Fifth Amendment rights. On December 19, 2016, Helberg moved to dismiss that claim for 

failure to state a claim upon which relief can be granted. (Docket No. 58). Plaintiff’s response 

was due January 6, 2017, but plaintiff filed none. On February 1, 2017, the Court issued the 

above-mentioned Order to Show Cause (Docket No. 59), with plaintiff’s response due twentyone days later. Plaintiff has not responded.

ANALYSIS

In its Order to Show Cause, the Court ordered plaintiff to explain why it should not grant 

Helberg’s Motion. The Court warned that “[f]ailure to comply with this Order in a timely 

fashion may result in dismissal of this claim for failure to prosecute, and to comply with a court 

order.” Order to Show Cause, at 2 (Docket No. 59). Plaintiff has now failed to oppose 

Helberg’s Motion to Dismiss the Fifth Amendment Bivens claim, failed to prosecute that claim, 

and failed to comply with the Court’s Order to Show Cause. This inaction, together with the 

Court’s notice that failure to comply would result in it recommending the grant of Helberg’s 

Motion and the dismissal of the Fifth Amendment Bivens claim, justify granting the Motion and 

dismissing that claim. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Yourish v. 

Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999); Fed. R. Civ. P. 41(b).
Page 3 – FINDINGS AND RECOMENDATION

In determining whether to dismiss a claim for failure to prosecute or failure to 

comply with a court order, the Court must weigh the following factors: (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 defendants/respondents; (4) the 

availability of less drastic alternatives; and (5) the public policy favoring 

disposition of cases on their merits.

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Court considers these factors:

1. “The public’s interest in expeditious resolution of litigation always favors dismissal.” 

Yourish, 191 F.3d at 990 (9th Cir.1999). Given plaintiff’s failure to respond to Helberg’s Motion 

to Dismiss, which was filed four months ago, this factor weighs in favor of dismissal. See

Pagtalunan, 291 F.3d at 642.

2. “It is incumbent upon the Court to manage its docket without being subject to routine 

noncompliance of litigants such as” plaintiff. Id. This factor weighs in favor of dismissal.

3. Plaintiff has offered “no . . . explanations of what actions he actually took during the . 

. . time periods” during which he failed to prosecute this action or respond to the Court’s Order. 

Id. at 643. “Unnecessary delay inherently increases the risk that witnesses’ memories will fade 

and evidence will become stale.” Id. This factor weighs in favor of dismissal.

4. The Court already employed the less drastic measure of issuing an Order to Show 

Cause, rather than granting outright Helberg’s Motion for plaintiff’s failure to oppose. Plaintiff 

has wasted his opportunity to take advantage of that less drastic measure. The Court is left only 

with the course of granting the Motion and dismissing the claim, which the Court warned of in 

its Order. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1229 (9th 

Cir. 2006) This factor weighs in favor of dismissal.

5. “Public policy favors disposition of cases on the merits. Thus, this factor weighs 

against dismissal,” Pagtalunan, 291 F.3d at 643, but only weakly, because plaintiff’s failure to 

prosecute this action, respond to Motions, or comply with Orders severely impairs disposition of 
Page 4 – FINDINGS AND RECOMENDATION 

the case on the merits. See United States ex rel. Berglund v. Boeing Co., 835 F. Supp. 2d 1020, 

1053-54 (D. Or. 2011). 

Four factors favor dismissal, and one weighs against, but only weakly. The five-factor 

test thus strongly comes out in favor of granting Helberg’s Motion and dismissing the Fifth 

Amendment Bivens claim for failure to prosecute, failure to oppose her Motion, and failure to 

comply with the Order to Show Cause. Dismissal should be with prejudice. See Pagtalunan, 

291 F.3d at 641; McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996). 

RECOMMENDATION 

Because plaintiff has failed to prosecute his Fifth Amendment Bivens claim against 

defendant Helberg, failed to oppose her Motion to Dismiss that claim, and failed to respond to 

the Court’s Order to Show Cause, the Court should GRANT Helberg’s Motion and DISMISS the 

Fifth Amendment Bivens claim against her, with prejudice. 

SCHEDULING ORDER 

The above Findings and Recommendation will be referred to a United States District 

Judge for review. Objections, if any, are due _________. If objections are filed, a response to

the objections is due fourteen days after the date the objections are filed and the review of the 

Findings and Recommendation will go under advisement on that date. 

IT IS SO ORDERED. 

DATED this __ date of _________, 2017.

PATRICIA SULLIVAN 

United States Magistrate Judge 

20 April

/s/ Patricia Sullivan

5/4/2017