REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 43]
DISMISSING ACTION WITH PREJUDICE
MICHAEL M. ANELLO,
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
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
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. 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).
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 ...