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Beringer v. County of San Bernardino

United States District Court, Central District of California, Eastern Division

November 4, 2014

MICHAEL A. BERINGER, Plaintiff,
v.
COUNTY OF SAN BERNARDINO, SHERIFFS, et al., Defendants

Michael Robert Beringer, Plaintiff, Pro se, Rancho Cucamonga, CA.

For County of San Bernardino Sheriffs, Sheriff Dept, MR Jeff Rose, Jail Capt, in individual capacity, Jeff Rose, Jail Capt, in official capacity, Defendants: Algeria R Ford, LEAD ATTORNEY, San Bernardino County Counsel, San Bernardino, CA.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

ANDREW J. WISTRICH, United States Magistrate Judge.

Proceedings

Plaintiff, who is incarcerated and is proceeding pro se, filed a civil rights complaint against the " County of San Bernardino Sheriffs" (the " County") and two San Bernardino County Sheriff's Department officers, Jeff Rose (" Rose") and Mr. Coorba (" Coorba").

On August 29, 2014, the County and Rose filed and served a motion to dismiss the complaint with prejudice for failure to state a claim upon which relief can be granted. A scheduling order was issued setting a deadline of September 24, 2014 for plaintiff to file an opposition to the motion. The order included the following warning:

The Court may decline to consider any memorandum or other paper not filed within the deadline set by order or local rule. The failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion. C.D. Cal. Local R. 7-12.

[Docket no. 12 (emphasis in original)]. Plaintiff did not file opposition to the motion or a request for extension of time by the filing deadline of September 24, 2014.

On September 17, 2014, the United States Marshal Service (" USMS") filed Process Receipt and Return (USM-285) forms stating that the County and Rose had been served with the summons and complaint, but that service had not been executed on Coorba for the following reason: " The employer does not have the above individual on their records of employment. Not able to serve nor locate." [Docket no. 15].

Plaintiff's failure to file timely opposition to defendants' motion to dismiss and his failure to provide the USMS with adequate information to locate and serve Coorba with the summons and complaint warrant dismissal of this action.

Discussion

Rule 41(b)

It is well-established that a district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed.R.Civ.P. 41(b); C. D. Cal. Local R. 7-12, 41-1; Link v. Wabash R. Co., 370 U.S. 626, 629-630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.) (per curiam), cert. denied, 516 U.S. 838, 116 S.Ct. 119, 133 L.Ed.2d 69 (1995); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). 626, 629-630 (1962). " The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendar of the District Courts." Link, 370 U.S. at 629-630.

Under Local Rule 7-12, " [t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion . . . ." The Ninth Circuit has upheld the dismissal of an action for failure to file opposition to a motion to dismiss pursuant to a similar local rule. See Ghazali, 46 F.3d at 53 (holding that where the plaintiff failed to file an opposition to a motion to dismiss, the district court did not abuse its discretion in dismissing the action pursuant a local rule stating that a party's failure to file an opposition to a motion " shall constitute a consent to the granting of the motion"). Plaintiff's pro se status does not excuse him from compliance with the federal or local rules. See generally Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (" [A] pro se litigant must 'abide by the rules of the court in which he litigates.'") (quoting Carter v. Comm'r, 784 ...


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