Ricky Moore v. J. Soto

FILED

NOT FOR PUBLICATION MAY 18 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY MOORE, No. 12-56766

Petitioner - Appellant, D.C. No. 2:10-CV-06739-DSF-

JCG

v.

J. SOTO, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted April 6, 2015 Pasadena, California

Before: D.W. NELSON, TASHIMA, and CLIFTON, Circuit Judges.

Ricky Moore, a California state prisoner, appeals the district court’s

dismissal of his habeas petition. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court summarily adopted the magistrate judge’s report and

recommendation which proposed dismissing Moore’s petition as untimely. The

report and recommendation stated in a footnote that “Pursuant to Local Rule 7-12,

the…

MEMORANDUM *

Ricky Mooré, a California state prisoner, appeals the district court’s dismissal of his habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand.

The district court summarily adopted the magistrate judge’s report and recommendation which proposed dismissing Moore’s petition as untimely. The report and recommendation stated in a footnote that “Pursuant to Local Rule 7-12, the Court also deems Petitioner’s failure to file opposition papers [to the motion to dismiss] as consent to the granting of the Motion [to Dismiss].” While it is within a district court’s discretion to grant a motion to dismiss for failure of a pro se litigant to oppose the motion, doing so is not required. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995) (per curiam).

Moreover, before dismissing a petition on such grounds, the district court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. at 53 (quoting Henderson…

dissenting:

I respectfully dissent. In my view, the dismissal of Moore’s habeas petition should be affirmed for two independently sufficient reasons.

First, the district court properly relied on Moore’s failure to oppose the State’s motion to dismiss as an alternative basis for dismissing the petition. The Central District of California Local Rules require that opposing papers be filed in response *897 to a motion to dismiss and provide that failure to do so may be deemed consent to the granting of the motion. Our case law establishes that “pro se litigants are bound by the rules of procedure,” and that “[failure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53, 54 (9th Cir.1995) (per curiam). Based on its independent review of the record, the majority concludes that the district court abused its discretion when it dismissed the petition. I respectfully disagree with that conclusion. “Only in rare cases will we question the exercise of discretion in connection with the application of local rules. This is not one of those infrequent cases.” United States v. Warren, 601 F.2d 471, 474 (9th Cir.1979) (per curiam).…