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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WESLEY RUSSELL, Sr.,

Petitioner, No. CIV S-04-2244 FCD GGH P

vs.

CHARLES PLUMMER,

Respondent. FINDINGS & RECOMMENDATIONS

 /

On January 31, 2005, respondent filed a motion to dismiss the instant petition as 

barred by the statute of limitations under 28 U.S.C. § 2244(d). By order filed on March 30, 2005,

the court ordered respondent to serve the motion upon petitioner on the address that the court

discerned was his probable present address, even though he did not file a formal notice of change

of address. On May 19, 2005, respondent was granted ten (10) days to show why the motion

had not been served upon the address noted in the court’s prior order. As noted in the court’s

August 3, 2005 order, a response was not forthcoming until June 30, 2005, which was deemed

timely because apparently the Court Clerk failed to serve the order upon respondent until June

22, 2005. The court noted in that order that it appeared that petitioner was properly served with

the motion to dismiss at Avenal State Prison, even though petitioner had not updated his

addresses by proper formal notice.

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In the August 3, 2005 order, petitioner was cautioned that, pursuant to Local Rule

78-230(m), his failure to file written opposition to the pending motion, or a statement of no

opposition, may be deemed a waiver of any opposition to the court’s granting the motion. 

Petitioner was granted 15 days to show cause why the motion should not be granted. He was

further admonished that should he fail to file and serve any opposition prior to the expiration of

that time, along with a showing of good cause why he had failed to file his opposition timely, the

court would recommend that the motion be granted. Moreover, the court’s review of

respondent’s motion demonstrates that it has merit.

In the alternative, petitioner was informed that should no response be

forthcoming, the court would recommend dismissal for petitioner’s failure to keep the court

apprised of his current address, pursuant to Local Rule 83-182(f) and Local Rule 11-110, and for

failure to prosecute this action. The court took the precaution to serve the order upon three

different addresses: the DVI address, which remains the current address of record, the Avenal

State Prison address, and the latest address respondent had discovered for petitioner as a parolee

in San Francisco. Petitioner has failed to file any response whatsoever and the time for doing so

has expired. Pursuant to Local Rule 78-230(m), therefore, the court deems the failure to file

written opposition as a waiver of any opposition to the granting of respondent’s motion. 

“Failure to follow a district court’s local rules is a proper ground for dismissal.” 

Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Pro se litigants are bound by the rules of

procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d

565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) .

In determining to recommend that this action be dismissed, the court has

considered the five factors set forth in Ghazali, 46 F.3d at 53. Petitioner’s failure to comply with

the Local Rules has impeded the expeditious resolution of the instant litigation and has burdened

the court’s docket, consuming scarce judicial resources in addressing litigation which petitioner

demonstrates no intention to pursue. Although public policy favors disposition of cases on their

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 Or, in this case, petitioner’s action.

3

merits, petitioner’s failure to oppose the pending motion has precluded the court from doing so. 

In addition, respondent is prejudiced by the inability to reply to opposition. Finally, the court has

repeatedly advised petitioner of the requirements under the Local Rules and granted ample

additional time to oppose the pending motion, all to no avail, subjecting his action to dismissal

pursuant to Fed. R. Civ. P. 41(b). There appears to be no suitable alternative to dismissal of this

action.

As yet another ground of dismissal, the court will recommend petitioner’s failure

to prosecute this action:

The authority of a federal trial court to dismiss a plaintiff’s1 action

with prejudice because of his failure to prosecute cannot seriously

be doubted. [FN3] 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 calendars of the District Courts. 

Roadway Express, Inc., v. Piper, 447 U.S. 752, 765, 100 S. Ct. 2455, 2463 (1980), quoting Link

v. Wabash Railroad Co., 370 U.S. 626, 629-630, 82 S. Ct. 1386, 1388 (1962); Plaut v.

Spendthrift , 514 U.S. 211, 228, 115 S. Ct. 1447, 1457 (1995)(“[t]he rules of finality, both

statutory and judge made, treat,” inter alia, dismissals “for failure to prosecute: as a judgment on

the merits.”).

Accordingly, IT IS RECOMMENDED, for the reasons set forth above that

respondent’s motion to dismiss, filed on January 31, 2005, be granted; in the alternative, the

court recommends dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b)

and for petitioner’s failure to prosecute.

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These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 9/2/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

russ2244.fsc

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