(PC) Towner v. Knowles et al, No. 2:2008cv02823 - Document 27 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 09/22/10 recommending that this action be dismissed without prejudice. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)
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(PC) Towner v. Knowles et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 VERNON TOWNER, Plaintiff, 11 12 13 14 15 16 No. CIV S-08-2823 LKK EFB P vs. LESANE, et al., Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff proceeds without counsel and seeks relief for alleged civil rights violations. See 17 42 U.S.C. § 1983. On March 26, 2010, defendant moved to dismiss this action on the ground 18 that plaintiff failed to exhaust administrative remedies. Dckt. No. 19. On January 5, 2010, the 19 court advised plaintiff of the requirements for opposing a motion to dismiss and/or for summary 20 judgment for failure to exhaust available administrative remedies. See Wyatt v. Terhune, 315 21 F.3d 1108, 1120 n.14 (9th Cir. 2003). That order also informed plaintiff of the requirements for 22 filing an opposition to the pending motion and that failure to oppose such a motion might be 23 deemed a waiver of opposition to the motion. Plaintiff failed to file an opposition. 24 On May 4, 2010, the court gave plaintiff 21 days to file an opposition or statement of 25 non-opposition and warned him that failure to do so could result in a recommendation that this 26 action be dismissed. See Fed. R. Civ. P. 41(b). The 21 days passed and plaintiff did not file an 1 Dockets.Justia.com 1 opposition or a statement of no opposition. The court therefore recommended that this action be 2 dismissed. Dckt. No. 23. On July 8, 2010, however, plaintiff requested an extension of time to 3 oppose defendant’s motion, explaining he had been hospitalized and was not in possession of his 4 property. Dckt. No. 24. Therefore, the court vacated its recommendation of dismissal, granted 5 plaintiff’s request for a 45-day extension of time, and warned plaintiff that failure to comply with 6 the order would result in another recommendation that this action be dismissed. The 45-days 7 have passed and plaintiff has not filed an opposition or statement of no opposition.1 8 9 10 11 Plaintiff has been warned that he must file a response to defendant’s motion. Plaintiff has disobeyed this court’s orders. The appropriate sanction is dismissal without prejudice. Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: September 22, 2010. 20 21 22 23 24 25 26 1 Although it appears from the file that plaintiff’s copy of the order was returned, plaintiff was properly served. It is the plaintiff’s responsibility to keep the court apprised of his current address at all times. Local Rule 182(f). 2