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