Kerry R. Roberts v. J. Haar MD et al

Filing 58

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Fernando M. Olguin for NOTICE OF MOTION AND MOTION to Dismiss FIRST AMENDED COMPLAINT 37 , Report and Recommendation (Issued) 55 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment shall be entered dismissing the action without prejudice. (Attachments: # 1 Report and Recommendation) (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KERRY RASHAD ROBERTS,

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Plaintiff,
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v.
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J. HAAR, et al.,
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Defendants.
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______________________________)

NO. CV 16-4956-FMO(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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Fernando M. Olguin, 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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Plaintiff filed this action on July 7, 2016.

Plaintiff filed a

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Second Amended Complaint on June 23, 2017.

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to Dismiss Second Amended Complaint” on July 12, 2017.

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///

Defendants filed a “Motion

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By Minute Order filed July 20, 2017, the Court ordered Plaintiff

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to file opposition to Defendants’ Motion to Dismiss within thirty (30)

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days of July 20, 2017.

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“[f]ailure timely to file opposition to the Motion may result in the

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dismissal of the action.”

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opposition within the allotted time.

The Minute Order cautioned Plaintiff that:

Nevertheless, Plaintiff failed to file any

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On August 29, 2017, the Magistrate Judge recommended that the
action be dismissed without prejudice.

See “Report and Recommendation

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of United States Magistrate Judge,” filed August 29, 2017.

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September 11, 2017, Plaintiff filed an “Objection, etc.,” in which

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Plaintiff renewed his request for the appointment of counsel.

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Minute Order filed September 11, 2017, the Magistrate Judge withdrew

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the prior Report and Recommendation, denied Plaintiff’s renewed

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request for the appointment of counsel and extended to October 2,

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2017, the time within which Plaintiff could file opposition to

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Defendants’ Motion to Dismiss.

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to file any opposition within the allotted time.

On

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Nevertheless, Plaintiff again failed

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DISCUSSION

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The action should be dismissed without prejudice.

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twice has failed timely to file opposition to a potentially

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dispositive motion, despite a Court order that he do so.

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has inherent power to achieve the orderly and expeditious disposition

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of cases by dismissing actions for failure to prosecute and for

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failure to obey Court orders.

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30 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002),

Plaintiff

The Court

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

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cert. denied, 538 U.S. 909 (2003); Ghazali v. Moran, 46 F.3d 52, 53-54

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(9th Cir.), cert. denied, 516 U.S. 838 (1995); see also L.R. 7-12.

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The Court has considered the factors recited in Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-62 (9th Cir. 1992), cert. denied, 506 U.S. 915

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(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.

In particular, any less drastic alternative would not be

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RECOMMENDATION

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

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

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

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the action without prejudice.

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Dated: October 10, 2017.

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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.

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No notice of appeal pursuant to the