(HC) Flores v. Borders, No. 1:2018cv00690 - Document 14 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 10 Respondent's Motion to Dismiss be GRANTED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jeremy D. Peterson on 11/20/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE RAUL FLORES, 10 Petitioner, 11 v. 12 DEAN BORDERS, 13 Respondent. Case No. 1:18-cv-00690-DAD-JDP FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS ECF No. 10 OBJECTIONS, IF ANY, DUE IN 14 DAYS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Petitioner Jose Raul Flores 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 August 13, 2018, respondent filed a motion to dismiss setting forth several arguments as to why this case should be dismissed. ECF No. 10. Petitioner filed no response and on October 12, 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 1 failure to prosecute or comply with the rules of civil procedure or the court’s orders). 2 Here, petitioner was served with respondent’s March 27, 2018 motion to dismiss, ECF 3 No. 10, and the court’s October 12, 2018 order, ECF No. 13, directing him to file a response at 4 the address petitioner had listed on the docket. Petitioner failed to respond. We therefore recommend that the petition be dismissed without prejudice for failure to 5 6 prosecute and failure to obey the court’s order. 7 For these reasons, it is recommended that: 8 1. the petition be dismissed without prejudice for failure to prosecute and failure to obey the court’s order; and 9 10 2. the clerk be directed to close this case. 11 These findings and recommendations will be submitted to the U.S. district judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days of service of these findings and recommendations, plaintiff may file written 14 objections with the court. If plaintiff files such objections, he should do so in a document 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 16 advised that failure to file objections within the specified time may result in the waiver of rights 17 on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 18 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: November 20, 2018 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2