(PC) Damon Jones v. Yates et al, No. 1:2006cv01812 - Document 31 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS 1 , signed by Magistrate Judge Sandra M. Snyder on 1/27/2010. It is RECOMMENDED that this action be dismissed, without prejudice, for Plaintiff's failure to prosecute. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 3/2/2010. (Scrivner, E)

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(PC) Damon Jones v. Yates et al Doc. 31 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 DAMON JONES, Plaintiff, 8 9 vs. 1: 06 CV 01812 AWI YNP SMS (PC) FINDINGS AND RECOMMENDATIONS 10 11 12 13 JAMES YATES, et al, Defendants. 14 15 16 17 Plaintiff is a state prisoner proceeding pro sen and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On August 18, 2009, Defendant filed a motion to dismiss this action pursuant to Federal 18 Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff failed to state a claim upon which 19 relief could be granted. Plaintiff failed to file opposition to the motion or a statement of non 20 opposition. On October 9, 2009, a recommendation of dismissal was entered, recommending 21 dismissal of this action for Plaintiff’s failure file opposition to the motion. On December 23, 22 2009, an order was entered by the District Court, declining to adopt the findings and 23 recommendations. The District Court noted that Plaintiff was not give proper notice of the 24 motion to dismiss. 25 On January 5, 2010, an order to show cause was entered, advising Plaintiff that he is 26 1 Dockets.Justia.com 1 required by local rule to respond to the Auguat 18, 2009, motion to dismiss. The order to show 2 cause noted that Plaintiff failed to file a response to the motion to dismiss, or the October 9, 3 2009, recommendation of dismissal. Plaintiff was specifically advised that “It is within the 4 inherent power of the court to sua sponte dismiss a case for lack of prosecution.” Ash v. 5 Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Plaintiff was ordered to show cause, within twenty 6 days, why this action should not be dismissed for his failure to prosecute. On January 13, 2010, Plaintiff filed a form for consent to the exercise of magistrate judge 7 8 jurisdiction. The form indicates that counsel for Defendants declined magistrate judge 9 jurisdiction. The form includes Plaintiff’s signature, but does not in any way show cause why 10 this action should not be dismissed for Plaintiff’s failure to prosecute. Further, Plaintiff has yet 11 to file an opposition to the motion to dismiss. Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 12 13 prejudice, for Plaintiff’s failure to prosecute. These findings and recommendations are submitted to the United States District Judge 14 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served and filed within ten days after service of the objections. The parties are advised 20 that failure to file objections within the specified time waives all objections to the judge’s 21 findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file 22 objections within the specified time may waive the right to appeal the District Court’s order. 23 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 IT IS SO ORDERED. 25 Dated: icido3 January 27, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 2

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