(PC) Franklin v. McDonald, No. 2:2010cv01147 - Document 29 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 05/13/11 ORDERING that defendants' motion to modify the scheduling order 28 is denied as moot. Also, RECOMMENDING that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Morrison C. England Jr. Objections due within 14 days.(Plummer, M)

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(PC) Franklin v. McDonald Doc. 29 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 ROOSEVELT FRANKLIN, Plaintiff, 10 11 12 13 14 No. 2:10-cv-1147 MCE JFM (PC) vs. MIKE MCDONALD, Warden, et al., Defendants. ORDER AND FINDINGS & RECOMMENDATIONS / 15 On February 25, 2011, defendants filed a motion to dismiss. Plaintiff was granted 16 an extension of time to May 8, 2011 to file opposition. Plaintiff was cautioned that failure to file 17 opposition would be deemed as a statement of non-opposition to the granting of the motion. 18 Plaintiff has filed no opposition, although court records reflect plaintiff was properly served with 19 notice of the motion and the order granting an extension of time to file opposition at plaintiff’s 20 address of record. On May 9, 2011, defendants filed a motion to modify the scheduling order in 21 light of the pending motion to dismiss. 22 Local Rule 230(l) provides in part: “Failure of the responding party to file written 23 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 24 the granting of the motion . . . .” Further, Local Rule 110 provides that failure to comply with 25 the Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or 26 Rule or within the inherent power of the Court.” 1 Dockets.Justia.com 1 By order filed December 2, 2010, plaintiff was advised of the above requirements 2 for filing opposition under the Local Rules and cautioned that failure to comply with the Local 3 Rules might result in the imposition of sanctions. In addition, by order filed April 8, 2011, 4 plaintiff was again advised of the requirements under the Local Rules, afforded additional time 5 to file opposition, cautioned that failure to file opposition would be deemed a statement of 6 nonopposition and would result in a recommendation that this action be dismissed. Further, 7 plaintiff was ordered to show cause why sanctions should not be imposed for failure to timely 8 file an opposition. Plaintiff has not responded to the order to show cause, and has again failed to 9 file opposition. Pursuant to Local Rule 230(l), therefore, the court deems the failure to file 10 11 written opposition as a waiver of any opposition to the granting of defendant’s motion. “Failure to follow a district court’s local rules is a proper ground for dismissal.” 12 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Pro se litigants are bound by the rules of 13 procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 14 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) . 15 In determining to recommend that this action be dismissed, the court has 16 considered the five factors set forth in Ghazali, 46 F.3d at 53. Plaintiff’s failure to comply with 17 the Local Rules has impeded the expeditious resolution of the instant litigation and has burdened 18 the court’s docket, consuming scarce judicial resources in addressing litigation which plaintiff 19 demonstrates no intention to pursue. Although public policy favors disposition of cases on their 20 merits, plaintiff’s failure to oppose the pending motion has precluded the court from doing so. In 21 addition, defendants are prejudiced by the inability to reply to opposition. Finally, the court has 22 repeatedly advised plaintiff of the requirements under the Local Rules and granted ample 23 additional time to oppose the pending motion, all to no avail. The court finds no suitable 24 alternative to dismissal of this action. 25 26 Accordingly, IT IS ORDERED that defendants’ motion to modify the scheduling order is denied as moot; and 2 1 2 3 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 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 5 days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 8 shall be served and filed within fourteen days after service of the objections. The parties are 9 advised that failure to file objections within the specified time may waive the right to appeal the 10 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: May 13, 2011. 12 13 14 15 /014;fran1147.fsc.noop 16 17 18 19 20 21 22 23 24 25 26 3

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