Ortiz v. Cox et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/4/2011 ORDERING the clerk to assign a district judge to this case; and RECOMMENDING that this action be dismissed pursuant to F.R.Civ.P. 41(b). Assigned and Referred to Judge Kimberly J. Mueller; Objections due w/in 21 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROMAN ORTIZ,
Plaintiff,
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No. 2:10-cv-0351 JFM (PC)
vs.
COX, et al.,
ORDER AND
Defendants.
FINDINGS & RECOMMENDATIONS
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On July 15, 2011, defendants filed a motion for summary judgment. Plaintiff was
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granted an extension of time to September 18 2011 to file opposition. Plaintiff was cautioned
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that failure to file opposition would be deemed as a statement of non-opposition to the granting
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of the motion. Plaintiff has filed no opposition, although court records reflect plaintiff was
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properly served with notice of the motion and the order granting an extension of time to file
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opposition at plaintiff’s address of record.
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Local Rule 230(l) provides in part: “Failure of the responding party to file written
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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to
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the granting of the motion . . . .” Further, Local Rule 110 provides that failure to comply with
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the Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or
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Rule or within the inherent power of the Court.”
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By order filed September 23, 2010, plaintiff was advised of the above
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requirements for filing opposition under the Local Rules and cautioned that failure to comply
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with the Local Rules might result in the imposition of sanctions. In addition, by order filed
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August 18, 2011, plaintiff was again advised of the requirements under the Local Rules, afforded
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additional time to file opposition, cautioned that failure to file opposition would be deemed a
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statement of nonopposition and would result in a recommendation that this action be dismissed.
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Plaintiff has again failed to file opposition. Pursuant to Local Rule 230(l), therefore, the court
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deems the failure to file written opposition as a waiver of any opposition to the granting of
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defendants’ motion.
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“Failure to follow a district court’s local rules is a proper ground for dismissal.”
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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Pro se litigants are bound by the rules of
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procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d
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565, 567 (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
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considered the five factors set forth in Ghazali, 46 F.3d at 53. Plaintiff’s failure to comply with
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the Local Rules has impeded the expeditious resolution of the instant litigation and has burdened
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the court’s docket, consuming scarce judicial resources in addressing litigation which plaintiff
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demonstrates no intention to pursue. Although public policy favors disposition of cases on their
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merits, plaintiff’s failure to oppose the pending motion has precluded the court from doing so. In
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addition, defendants are prejudiced by the inability to reply to opposition. Finally, the court has
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repeatedly advised plaintiff of the requirements under the Local Rules and granted ample
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additional time to oppose the pending motion, all to no avail. The court finds no suitable
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alternative to dismissal of this action.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a
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district judge to this case; and
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/////
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IT IS RECOMMENDED that this action be dismissed pursuant to Federal Rule of
Civil Procedure 41(b).
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge's Findings and Recommendations.” The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 4, 2011.
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