Raul Figueroa Silva v. Dave Davey

Filing 18

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Michael W. Fitzgerald. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the First Amended Petition without prejudice. (Attachments: # 1 R&R) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RAUL FIGUEROA SILVA,

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Petitioner,
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v.
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DAVE DAVEY, Warden,
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Respondent.
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______________________________)

NO. CV 14-6105-MWF(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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Michael W. Fitzgerald, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “First Amended Petition for Writ of Habeas

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Corpus by a Person in State Custody” on September 8, 2014.

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filed an Answer on January 7, 2015.

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to the Answer within the allotted time.

Respondent

Petitioner failed to file a Reply

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On February 3, 2015, the Magistrate Judge ordered that Petitioner

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file a Reply to the Answer within twenty (20) days of February 3,

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2015.

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“may result in the denial and dismissal of the Petition.”

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Nevertheless, Petitioner again failed to file a Reply to the Answer

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within the allotted time.

The Magistrate Judge cautioned Petitioner that failure to do so

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DISCUSSION

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The First Amended Petition should be denied and dismissed without

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prejudice.

Petitioner has failed to file a timely Reply, despite a

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court order that he do so.

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the orderly and expeditious disposition of cases by dismissing actions

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for failure to prosecute.

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(1962).

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Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S.

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915 (1992), and has concluded that dismissal without prejudice is

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appropriate.

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effective under the circumstances of this case.

The Court has inherent power to achieve

Link v. Wabash R.R., 370 U.S. 626, 629-30

The Court has considered the factors recited in Ferdik v.

In particular, any less drastic alternative would not be

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order: (1) accepting and adopting this Report and

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Recommendation; and (2) directing that Judgment be entered denying and

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dismissing the First Amended Petition without prejudice.

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DATED: March 2, 2015.

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_______________/S/_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report