Jackson v. Salinas et al

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/18/2011 ORDERING that the Clerk of Court assign a district judge to this case; RECOMMENDING that the 1 Prisoner Civil Rights Complaint be dismissed pursuant to FRCP 41(b). Referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Michel, G)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MIDEL JACKSON, 11 Plaintiff, 12 vs. 13 No. CIV S-10-2370 CKD MANNING, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 On May 16, 2011, defendants filed a motion to dismiss. On July 5, 2011, plaintiff 17 was granted an additional thirty days to file either an opposition or a statement of non-opposition 18 to the motion to dismiss. Plaintiff was cautioned that failure to comply with the order would 19 result in dismissal of the action pursuant to Fed. R. Civ. Proc. 41(b) and Local Rule 230. 20 This order was served on plaintiff’s address of record and returned by the postal 21 service. It appears that plaintiff has failed to comply with Local Rule 182(f), which requires that 22 a party appearing in propria persona inform the court of any address change.1 “Absent such 23 notice, service of documents at the prior address of the attorney or pro se party shall be fully 24 effective.” L.R. 182(f). Thus, plaintiff was effectively served with the court’s July 5, 2011 25 1 26 Plaintiff’s failure to comply with this local rule is an independent reason for recommending dismissal. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995), infra. 1 1 order. 2 Local Rule 230(l) provides in part: “Failure of the responding party to file written 3 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 4 the granting of the motion . . . .” Pursuant to Local Rule 230(l), therefore, the court deems the 5 failure to file written opposition as a waiver of any opposition to the granting of defendant’s 6 motion. 7 “Failure to follow a district court’s local rules is a proper ground for dismissal.” 8 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Pro se litigants are bound by the rules of 9 procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 10 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) . 11 In determining whether to recommend that this action be dismissed, the court has 12 considered the five factors set forth in Ghazali, 46 F.3d at 53. Plaintiff’s failure to comply with 13 the Local Rules has impeded the expeditious resolution of the instant litigation and has burdened 14 the court’s docket, consuming scarce judicial resources in addressing litigation which plaintiff 15 demonstrates no intention to pursue. Although public policy favors disposition of cases on their 16 merits, plaintiff’s failure to oppose the pending motion has precluded the court from doing so. In 17 addition, defendants are prejudiced by the inability to reply to opposition. Finally, the court has 18 advised plaintiff of the requirements under the Local Rules and granted ample additional time to 19 oppose the pending motion, all to no avail. The court finds no suitable alternative to dismissal of 20 this action. 21 22 23 24 25 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to this case. IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 2 1 days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 4 shall be served and filed within fourteen days after service of the objections. The parties are 5 advised that failure to file objections within the specified time may waive the right to appeal the 6 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: August 18, 2011 8 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 9 10 11 2 jack2370.fsc.noop 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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