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Sedgwick v. Unknown K9 Handler

United States District Court, Ninth Circuit

May 31, 2013

RUSSELL SEDGWICK, Plaintiff,
v.
UNKNOWN K9 HANDLER, et al. Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 43] DISMISSING ACTION WITH PREJUDICE

MICHAEL M. ANELLO, District Judge.

Plaintiff Russell Sedgwick, proceeding pro se, filed this civil rights action while incarcerated at Richard J. Donovan Correctional Facility in San Diego, California. Plaintiff's whereabouts at this time are uncertain and he appears to have abdicated responsibility for litigating this case. United States Magistrate Judge William V. Gallo now recommends that this Court sanction Plaintiff by dismissing his claims and terminating the action. Objections to the Report and Recommendation were due on or before May 24, 2013. Plaintiff did not file any objections. For the reasons set forth below, the Court ADOPTS the Report and Recommendation in its entirety and DISMISSES Plaintiff's claims with prejudice.

DISCUSSION

Where, as here, a magistrate judge makes a recommendation regarding a particular matter pursuant to 28 U.S.C. § 636, the district judge "may accept, reject, or modify the recommended disposition." Fed.R.Civ.P. 72(b); see 28 U.S.C. § 636(b)(1). "[T]he court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121. Accordingly, a district judge is entitled to adopt a magistrate judge's report and recommendation based on the lack of objections. Nonetheless, the Court has conducted a de novo review of the pertinent portions of the record and agrees that terminating sanctions are appropriate.

As detailed by Judge Gallo, Plaintiff has participated in this litigation exactly twice in the last twelve months. In August 2012, he submitted an ex parte letter. The Court rejected the letter pursuant to Civil Local Rule 83.9, which prohibits such contact with the Court. In January 2013, Plaintiff was deposed while incarcerated at San Diego County Jail.

Meanwhile, during the course of the past year, Defendants filed two motions to dismiss. Plaintiff opposed neither. After ruling on the sufficiency of Plaintiff's claims, the Court granted Plaintiff leave to file an amended complaint. He did not. Plaintiff at some point was released from prison but did not provide the Court with notice of his new address, a violation of this Court's local rules.[1] Plaintiff failed to appear for a mandatory settlement conference before Judge Gallo in March 2013. Plaintiff failed to respond to Judge Gallo's subsequent Order to Show Cause. Defendants then filed a motion for summary judgment. Plaintiff did not file a response.

The Ninth Circuit has admonished that a pro se plaintiff's civil rights action "should be dismissed only for an unreasonable failure to prosecute." McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). This is just such a case. As such, dismissal of Plaintiff's claims is within this Court's discretion and amply justified. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("District courts have the inherent power to control their dockets and, [i]n the exercise of that power they may impose sanctions including, where appropriate, ... dismissal.'"), quoting Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986).

CONCLUSION

Based on the foregoing, 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.

IT IS SO ORDERED.


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