Sedgwick v. Unknown K-9 Handler et al

Filing 45

ORDER Adopting 43 Report and Recommendation of the Magistrate Judge; and Dismissing Action With Prejudice. The Court Adopts the Report and Recommendation and Dismisses this action with prejudice. All pending motions are terminated and any remaining deadlines and/or hearings are vacated. The Clerk of Court is instructed to enter judgment accordingly and close the case. Signed by Judge Michael M. Anello on 5/31/2013. (All non-registered users served via U.S. Mail Service)(leh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RUSSELL SEDGWICK, 11 12 CASE NO. 12cv510-MMA (WVG) Plaintiff, vs. 13 14 15 16 ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 43] UNKNOWN K9 HANDLER, et al. DISMISSING ACTION WITH PREJUDICE Defendants. Plaintiff Russell Sedgwick, proceeding pro se, filed this civil rights action 17 while incarcerated at Richard J. Donovan Correctional Facility in San Diego, 18 California. Plaintiff’s whereabouts at this time are uncertain and he appears to have 19 abdicated responsibility for litigating this case. United States Magistrate Judge 20 William V. Gallo now recommends that this Court sanction Plaintiff by dismissing 21 his claims and terminating the action. Objections to the Report and 22 Recommendation were due on or before May 24, 2013. Plaintiff did not file any 23 objections. For the reasons set forth below, the Court ADOPTS the Report and 24 Recommendation in its entirety and DISMISSES Plaintiff’s claims with prejudice. 25 DISCUSSION 26 Where, as here, a magistrate judge makes a recommendation regarding a 27 particular matter pursuant to 28 U.S.C. § 636, the district judge “may accept, reject, 28 or modify the recommended disposition.” Fed. R. Civ. P. 72(b); see 28 U.S.C. § -1- 12cv510 1 636(b)(1). “[T]he court shall make a de novo determination of those portions of the 2 [Report and Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1); 3 see also Fed. R. Civ. P. 72(b). “The statute makes it clear that the district judge 4 must review the magistrate judge’s findings and recommendations de novo if 5 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 6 1114,1121 (9th Cir. 2003) (en banc). “Neither the Constitution nor the statute 7 requires a district judge to review, de novo, findings and recommendations that the 8 parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121. Accordingly, 9 a district judge is entitled to adopt a magistrate judge’s report and recommendation 10 based on the lack of objections. Nonetheless, the Court has conducted a de novo 11 review of the pertinent portions of the record and agrees that terminating sanctions 12 are appropriate. 13 As detailed by Judge Gallo, Plaintiff has participated in this litigation exactly 14 twice in the last twelve months. In August 2012, he submitted an ex parte letter. 15 The Court rejected the letter pursuant to Civil Local Rule 83.9, which prohibits such 16 contact with the Court. In January 2013, Plaintiff was deposed while incarcerated at 17 San Diego County Jail. 18 Meanwhile, during the course of the past year, Defendants filed two motions 19 to dismiss. Plaintiff opposed neither. After ruling on the sufficiency of Plaintiff’s 20 claims, the Court granted Plaintiff leave to file an amended complaint. He did not. 21 Plaintiff at some point was released from prison but did not provide the Court with 22 notice of his new address, a violation of this Court’s local rules.1 Plaintiff failed to 23 appear for a mandatory settlement conference before Judge Gallo in March 2013. 24 Plaintiff failed to respond to Judge Gallo’s subsequent Order to Show Cause. 25 26 1 “A party proceeding pro se must keep the court and opposing parties advised as to current address. If mail directed to a pro se plaintiff by the clerk at the plaintiff’s 27 last designated address is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of the plaintiff’s current 28 address, the court may dismiss the action without prejudice for failure to prosecute.” CivLR 83.11. -2- 12cv510 1 Defendants then filed a motion for summary judgment. Plaintiff did not file a 2 response. 3 The Ninth Circuit has admonished that a pro se plaintiff’s civil rights action 4 “should be dismissed only for an unreasonable failure to prosecute.” McKeever v. 5 Block, 932 F.2d 795, 797 (9th Cir. 1991). This is just such a case. As such, 6 dismissal of Plaintiff’s claims is within this Court’s discretion and amply justified. 7 See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“District courts have 8 the inherent power to control their dockets and, ‘[i]n the exercise of that power they 9 may impose sanctions including, where appropriate, . . . dismissal.’”), quoting 10 Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). 11 12 CONCLUSION Based on the foregoing, the Court ADOPTS the Report and Recommendation 13 and DISMISSES this action with prejudice. All pending motions are terminated 14 and any remaining deadlines and/or hearings are vacated. The Clerk of Court is 15 instructed to enter judgment accordingly and close the case. 16 IT IS SO ORDERED. 17 DATED: May 31, 2013 18 19 Hon. Michael M. Anello United States District Judge 20 21 22 23 24 25 26 27 28 -3- 12cv510

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