Opinion
CV-23-00162-TUC-JCH (AMM)
03-26-2024
Sergio Rodriguez-Robles, Petitioner, v. Merrick Garland, Respondent.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez United States Magistrate Judge
Petitioner Sergio Rodriguez-Robles (A# 091-427-052), who is not detained, filed a pro se petition seeking a determination of United States citizenship, which was transferred to this Court from the Ninth Circuit Court of Appeals under 8 U.S.C. § 1252(b)(5)(B). (Docs. 28, 33.) On September 5, 2023, District Judge John C. Hinderaker appointed Siovhan S. Ayala to represent Petitioner in this matter. (Doc. 38.) Thereafter, the matter was referred to the undersigned Magistrate Judge for pretrial proceedings. (Docs. 33, 40.)
The procedural history of this matter is set forth in the District Court's Order dated June 13, 2023. (Doc. 33.)
On November 16, 2023, Petitioner, through appointed counsel, filed an Amended p Petition for Declaratory Judgment under 28 U.S.C. § 2201(a). (Doc. 48.) Respondent responded to the Amended Petition on February 1, 2024. (Doc. 60.) On February 16, 2 2024, the Magistrate Judge granted Petitioner's counsel's Motion to Withdraw because p Petitioner's counsel was unable to establish contact with her client and was therefore unable to provide effective representation. (Doc. 61.) Accordingly, Petitioner is now self- represented. Given Petitioner's failure to participate in this lawsuit, on February 16, 2024, the Court ordered Petitioner to show cause within thirty days why this action should not be dismissed for failure to prosecute. (Id.) Plaintiff has not shown cause or taken any other action to prosecute this matter. On March 5, 2024, Respondent filed a Motion to Compel Petitioner to participate in discovery if the case is not dismissed for failure to prosecute. (Doc. 62.)
“Unless otherwise ordered by the Court, cases which have had neither proceedings nor pleadings, notices, or other documents filed for six (6) or more months may be dismissed by the Court for want of prosecution.” LRCiv 41.1. The Court must give the parties notice and an opportunity to show cause why the case should not be dismissed. Id. Here, Petitioner failed to establish contact with his attorney, despite his attorney's multiple attempts to do so. (See docs. 55, 57, 58, 61.) As a result, the Magistrate Judge granted counsel's request to withdraw from representation, leaving Petitioner selfrepresented. Petitioner has not made any effort to litigate this matter since his attorney's withdrawal. The February 16, 2024 Order to Show Cause, which was mailed to Petitioner's last-known address and has not been returned, provided Petitioner notice and an opportunity to show why the action should not be dismissed. (Doc. 61.) Petitioner has not done so. Accordingly, the Magistrate Judge recommends that this action be dismissed for failure to prosecute.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:23-CV-00162-TUC-JCH-AMM.
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Accordingly, IT IS RECOMMENDED that the District Judge dismiss the above-captioned matter for want of prosecution.
IT IS FURTHER RECOMMENDED that Respondents' Motion to Compel (doc. 62) be denied as moot.