Gaines v. Sherman et al

Filing 62

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Prosecute and Failure to Comply with Court Order signed by Magistrate Judge Jennifer L. Thurston on 5/17/2019. Referred to Judge Lawrence J. O'Neill. Objections to F&R due in Fourteen (14) Days. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LESLIE JAMES GAINES, JR.,

12

Plaintiff,

13

v.

14

No. 1:15-cv-1533 LJO JLT P
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
PROSECUTE AND FAILURE TO
COMPLY WITH COURT ORDER

BEASLEY, et al.,

15

FOURTEEN-DAY DEADLINE
Defendants.

16
17

On January 2, 2019, defendant Curtiss filed a motion for summary judgment pursuant to

18

Federal Rule of Civil Procedure 56(f). When plaintiff did not oppose the motion within the time

19

prescribed by Local Rule 230(l), the Court ordered him to do so on or before May 2, 2019. The

20

time for filing an opposition has now passed, and plaintiff has not responded to the Court order.

21

Local Rule 230(l) provides in part: “Failure of the responding party to file written

22

opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

23

the granting of the motion. . .” Further, Local Rule 110 provides that failure to comply with the

24

Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or

25

Rule or within the inherent power of the Court.”

26

“Failure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali

27

v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Pro se litigants are bound by the rules of procedure,

28

even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567
1

1
2

(9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986).
In determining to recommend that this action be dismissed, the court has considered the

3

five factors set forth in Ghazali, 46 F.3d at 53. Plaintiff’s failure to comply with the Local Rules

4

has impeded the expeditious resolution of the instant litigation and has burdened the court’s

5

docket, consuming scarce judicial resources in addressing litigation which plaintiff demonstrates

6

no intention to pursue. Although public policy favors disposition of cases on their merits,

7

plaintiff’s failure to oppose the pending motion has precluded the court from doing so. In

8

addition, defendant is prejudiced by the inability to reply to opposition. Finally, the Court has

9

repeatedly advised plaintiff of the requirements under the Local Rules and granted ample

10

additional time to oppose the pending motion, all to no avail. The Court finds no suitable

11

alternative to dismissal of this action.

12
13

Accordingly, the Court RECOMMENDS that this action be dismissed pursuant to
Federal Rule of Civil Procedure 41(b).

14

These findings and recommendations are submitted to the United States District Judge

15

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

16

after being served with these findings and recommendations, any party may file written

17

objections with the court and serve a copy on all parties. Such a document should be captioned

18

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

19

objections shall be filed and served within fourteen days after service of the objections. The

20

parties are advised that failure to file objections within the specified time may waive the right to

21

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

22
23
24

IT IS SO ORDERED.
Dated:

May 17, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

25
26
27
28
2