-EFB (TEMP)(PC) Swearington v. Wedell, et al, No. 2:2006cv01407 - Document 101 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/12/11 ORDERING that defendants are relieved of their obligation tofile a further pretrial statement; RECOMMENDING that this action be dismissed for failure to prosecute; 11 Amended Complaint referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)
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-EFB (TEMP)(PC) Swearington v. Wedell, et al Doc. 101 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DWAYNE SWEARINGTON, Plaintiff, 11 12 13 vs. DR. WEDELL, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 16 No. CIV S-06-1407 GEB EFB (TEMP) P Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. By order filed January 12, 2011, plaintiff was directed to file a pretrial statement 18 within thirty days. On February 2, 2011, plaintiff was granted an additional forty-five days in 19 which to file his pretrial statement. The time for acting has passed and plaintiff has failed to 20 comply. 21 A party’s failure to comply with any order or with the Local Rules “may be grounds for 22 imposition of any and all sanctions authorized by statute or Rule or within the inherent power of 23 the Court.” Local Rule 11-110. The court may recommend that an action be dismissed with or 24 without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1252 (9th Cir. 1992) (district court did not abuse discretion in 26 dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended 1 Dockets.Justia.com 1 complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 2 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule 3 regarding notice of change of address affirmed). 4 On July 15, 2008, the court directed the Clerk of the Court to send plaintiff a copy of the 5 Local Rules of this Court, and explained that failure to comply with the Local Rules or any order 6 of this court may result in a recommendation of dismissal. Furthermore, on April 30, 2009, the 7 court issued a scheduling order stating that in the event this action survived any dispositive 8 motions that were filed, the parties would be required to file pretrial statements pursuant to then 9 Local Rule 16-281 and further admonished the parties that “the parties are advised that failure to 10 file a pretrial statement may result in the imposition of sanctions, including dismissal of this 11 action.” See Dckt. No. 37 at 5:13-14. 12 13 14 15 Accordingly, it is hereby ORDERED that defendants are relieved of their obligation to file a further pretrial statement. Further, it is hereby RECOMMENDED that this action be dismissed for failure to prosecute. See Fed. R. Civ. P. 16(f); Fed. R. Civ. P. 41(b); Local Rule 110. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 18 being served with these findings and recommendations, any party may file written objections 19 with the court and serve a copy on all parties. Such a document should be captioned “Objections 20 to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 21 specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 22 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: April 12, 2011. 24 25 26 2