(HC) Brookins v. State of California, No. 1:2017cv01724 - Document 15 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 11 Motion to Dismiss signed by Magistrate Judge Jeremy D. Peterson on 10/11/18. Referred to Judge O'Neill. Objections to F&R Due Within 14-Days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 BARRY L BROOKINS, 10 Petitioner, 11 v. 12 STATE OF CALIFORNIA, 13 Respondent. Case No. 1:17-cv-01724-LJO-JDP FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS ECF No. 11 OBJECTIONS, IF ANY, DUE IN 14 DAYS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Petitioner Barry L. Brookins is proceeding without counsel on a petition for a writ of habeas corpus under 28 U.S.C. § 2254. This court issued an order requiring respondent to file a response to the petition. ECF No. 4. On March 27, 2018, respondent filed a motion to dismiss setting forth several arguments as to why this case should be dismissed. ECF No. 11. Petitioner filed no response and on June 14, 2018 the court ordered petitioner to respond within 21 days. ECF No. 13. Petitioner again failed to respond. Under Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing federal court’s inherent power to “act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 28 1 failure to prosecute or comply with the rules of civil procedure or the court’s orders). 1 Here, petitioner was served with respondent’s March 27, 2018 motion to dismiss, ECF 2 3 No. 11, and the court’s June 14, 2018 order, ECF No. 13, directing him to file a response at the 4 address petitioner listed on the docket (C-SATF). On September 28, 2018, petitioner filed a 5 notice of change of address from California Substance Abuse Treatment Facility (C-SATF) in 6 Corcoran, California to Kern Valley State Prison (KVSP) in Delano, California. ECF No. 14. 7 The notice of change of address was dated September 9, 2018, and petitioner indicated that he 8 was in the process of being transferred to KVSP.1 Thus, it appears that petitioner was properly 9 served at C-SATF with both: (1) respondent’s motion; and (2) the court’s order. Petitioner merely failed to respond. 10 We therefore recommend that the petition be dismissed without prejudice for failure to 11 prosecute and failure to obey the court’s order. 12 13 For these reasons, it is recommended that: 14 1. the petition be dismissed without prejudice for failure to prosecute and failure to obey the court’s order; and 15 16 2. the clerk be directed to close this case. 17 These findings and recommendations will be submitted to the U.S. district judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 19 (14) days of service of these findings and recommendations, plaintiff may file written 20 objections with the court. If plaintiff files such objections, he should do so in a document 21 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 22 advised that failure to file objections within the specified time may result in the waiver of rights 23 on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 24 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 26 1 A party must keep his address updated on the docket at all times. See Local Rule 183(b). Even 27 if a party’s address changes and the party neglects to notify the court of its updated address, service of documents at the prior address listed on the docket is fully effective. See Local Rule 28 182(f). 2 1 2 IT IS SO ORDERED. 3 Dated: October 11, 2018 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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