United States District Court, S.D. California
DUANE A. FINKS, Plaintiff,
KEVIN THOMAS, Adult Parole, Anaheim, Defendant.
matter before the Court is the “Motion to Dismiss
Portions of Plaintiff’s Complaint” (ECF No. 6)
filed by Defendant Kevin Thomas.
September 14, 2015, Plaintiff Duane A. Finks initiated this
action by filing a Complaint, alleging violations of 42
U.S.C. § 1983 against his parole officer, Defendant
Kevin Thomas stemming from Plaintiff’s arrest in
Anaheim, California.(ECF No. 1). On September 14, 2015,
Plaintiff also filed a motion to proceed in forma pauperis.
(ECF No. 2).
November 18, 2015, the Court granted Plaintiff’s motion
to proceed in forma pauperis. (ECF No. 3).
March 23, 2016, Defendant filed a motion to dismiss. (ECF No.
6). The docket reflects that no response has been filed.
Allegations of the Complaint
alleges that on June 30, 2015, Parole Agent Kevin Thomas
arrested him for a parole violation-specifically for
“disabling [his] GPS device by allowing it to go
dead.” (ECF No. 1 at 3). Plaintiff alleges that his GPS
device was malfunctioning again after being serviced twice in
the preceding eight weeks or so. Plaintiff alleges that he
“repaired the malfunction verbally AND by email.”
Id. Plaintiff alleges that “with no
investigation, [he] was held in custody 44 days-until [his]
revocation hearing in Superior Court.” Plaintiff
alleges that at the parole revocation hearing, “the
judge determined the device had malfunctioned, and there was
NO EVIDENCE of a parole violation.” Id.
Plaintiff alleges that as a result, his “SSI award,
Medical, and hemodialysis treatment facility all
contends that Plaintiff’s allegations support two
claims: (1) Fourth Amendment right to be free from unlawful
seizure (improperly labeled cruel and unusual punishment in
the Complaint); and (2) state-law malicious prosecution
(improperly labeled as false imprisonment in the Complaint).
Defendant contends that Plaintiff’s state claim for
malicious prosecution should be dismissed because Defendant
is immune from a state-law malicious prosecution claim under
California Government Code section 821.6 and 845.8. Defendant
contends that Plaintiff cannot amend his Complaint to cure
the defect of his state claim because Defendant has immunity
from state claims relating to arresting Plaintiff on a parole
hold. Defendant further contends that Plaintiff’s
state-law claim should be dismissed because Plaintiff has not
alleged compliance with the Government Claims Act.
district court may properly grant an unopposed motion
pursuant to a local rule where the local rule permits, but
does not require, the granting of a motion for failure to
respond. See Ghazali v. Moran, 46 F.3d 52, 54 (9th
Cir. 1995) (affirming dismissal for failing to oppose a
motion to dismiss, based on a local rule providing that
“[t]he failure of the opposing party to file a
memorandum of points and authorities in opposition to any
motion shall constitute consent to the granting of the
motion”). Civil Local Rule 7.1 provides: “If an
opposing party fails to file the papers in the manner
required by Civil Local Rule 7.1.e.2, that failure may
constitute a consent to the granting of a motion or other
request for ruling by the court.” S.D. Cal. Civ. Local
Rule 7.1(f)(3)(c). “Although there is . . . a [public]
policy favoring disposition on the merits, it is the
responsibility of the moving party to move towards that
disposition at a reasonable pace, and to refrain from
dilatory and evasive tactics.” In re Eisen, 31
F.3d 1447, 1454 (9th Cir. 1994) (quoting Morris v. Morgan
Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991))
(affirming dismissal for failure to prosecute).
docket reflects that Plaintiff has failed to file an
opposition as required by Civil Local Rule 7.1.e.2. Defendant
Thomas obtained a hearing date of May 23, 2016 for the
pending Motion to Dismiss. See ECF No. 6. Pursuant
to the local rules, Plaintiff was to file any response to the
Motion to Dismiss no later than May 9, 2016, fourteen days
prior to the hearing date. The docket reflects that Plaintiff
has failed to file a response to the Motion to Dismiss. The
Court construes Plaintiff’s failure to oppose the
Motion to Dismiss as “a consent to the granting
of” the motion to dismiss. S.D. Cal. Civ. Local Rule
7.1(f)(3)(c). The Court further concludes that “the
public’s interest in expeditious resolution of
litigation, ” “the court’s need to manage
its docket, ” and “the risk of prejudice to the
defendants” weigh in favor of granting the motion to
dismiss for failure to file an opposition. Ghazali,
46 F.3d at 53. Defendant’s motion to dismiss is
granted. Plaintiff’s state-law claim for malicious
prosecution is dismissed with prejudice. Plaintiff’s
Fourth Amendment claim remains pending.
HEREBY ORDERED that the motion to dismiss (ECF No. 6) filed
by Defendant Thomas is granted. Plaintiffs state-law claim
for malicious prosecution is ...