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Ernesto Ortega v. Fred Figueroa

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 3, 2013

ERNESTO ORTEGA,
PETITIONER,
v.
FRED FIGUEROA, RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

) REPORT AND RECOMMENDATION OF ) UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on August 7, 2012. Respondent filed an Answer on October 31, 2012. Petitioner failed to file a Reply within the allotted time.

The Magistrate Judge then ordered Petitioner to file a Reply within twenty (20) days of November 26, 2012. The Magistrate Judge's Order cautioned: "Failure timely to do so may result in the denial and dismissal of the Petition." Nevertheless, Petitioner again failed to file a Reply within the allotted time.

DISCUSSION

The Petition should be denied and dismissed without prejudice for failure to prosecute. Petitioner failed to file a timely Reply, despite a Court Order that he do so. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); see Fed. R. Civ. P. 41(b).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NO. CV 12-6785-MWF(E)

ERNESTO ORTEGA, ) Petitioner, v. FRED FIGUEROA, Respondent.

)) ORDER ACCEPTING FINDINGS, ) ) CONCLUSIONS AND RECOMMENDATIONS )) OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.

20130103

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