Opinion
C23-5545 BHS
07-05-2024
RICHARD SIMPSON, Plaintiff, v. AARON PRUNEDA, Defendant.
ORDER
BENJAMIN H. SETTLE, United States District Judge
THIS MATTER is before the Court on defendant Officer Aaron Pruneda's motion to dismiss for failure to prosecute, Dkt. 24. Pro se plaintiff Richard Simpson sued Pruneda and several others in June 2023, alleging they unlawfully arrested him in November 2022. Simpson alleged that Pruneda assaulted him during that arrest.
Magistrate Judge Grady J. Leupold provided Simpson an opportunity to amend his complaint in support of his application to proceed in forma pauperis, and Simpson did so. This Court adopted Judge Leupold's Report and Recommendation (R&R), denied Simpson's application as to his claims against most defendants, and dismissed his case against those defendants without prejudice and without leave to amend, for failure to state a plausible claim. Dkts. 7, 9. The Court granted Simpson's application to proceed in forma pauperis as to his excessive force claim against Pruneda and granted Simpson's motion for service by the U.S. Marshals Service. Dkts. 9 and 17. The complaint was served on February 29, 2024. The Court issued a scheduling Order on March 4, requiring, among other things, initial disclosures by May 28, and a joint status report by June 3. Pruneda answered on March 8. Dkt. 22.
Pruneda now asserts that Simpson has made his initial disclosures and has not responded to counsel's inquiries about the status report. He filed his motion to dismiss for failure to prosecute (and a Rand notice) on May 28. Dkts. 24, 25, 26. The motion was noted for June 28, 2024.
Simpson has not responded to the motion. Under Local Civil Rule 7(b)(2), a party's failure to respond to a motion to dismiss can be deemed by the Court an admission that the motion has merit:
(2) Obligation of Opponent. Each party opposing the motion shall, within the time prescribed in LCR 7(d), file with the clerk, and serve on each party that has appeared in the action, a brief in opposition to the motion, together with any supporting material of the type described in subsection (1). Except for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit.
Pruneda's motion does have merit, and Simpson's failure to respond is deemed an admission of the same. Simpson has failed to prosecute this action, and failed to respond to a motion pointing out that fact. The motion is GRANTED and Simpson's claim against Pruneda is DISMISSED without prejudice. Because there are no other pending claims, the clerk shall enter a judgment and close the case.
IT IS SO ORDERED.