-GGH (TEMP)(PC) Bray v. Mathis, No. 2:2009cv00051 - Document 25 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/22/2011 ORDERING the clerk to assign a district judge to this case; and RECOMMENDING that this action be dismissed pursuant to F.R.Civ.P. 41(b). Referred to Judge Morrison C. England, Jr.; Objections due w/in 21 days. (Yin, K)

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-GGH (TEMP)(PC) Bray v. Mathis Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHRISTOPHER S. BRAY 11 12 13 14 15 16 Plaintiff, No. CIV-S-09-0051 GGH (TEMP) P Defendant. FINDINGS AND RECOMMENDATIONS vs. MATHIS / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. On April 8, 2010, defendant filed a motion to dismiss based on the lack of 18 exhaustion of administrative remedies. On June 22, 2010, plaintiff was ordered to file an 19 opposition or a statement of non-opposition to the pending motion within thirty days. Plaintiff 20 failed to respond to the order. On January 20, 2011, plaintiff was again ordered to respond to the 21 motion to dismiss, within twenty-one days. Plaintiff has again failed to respond. In both orders, 22 plaintiff was informed that failure to file an opposition would result in a recommendation that 23 this action be dismissed pursuant to Fed. R. Civ. P. 41(b). The court will recommend dismissal 24 for plaintiff’s failure to prosecute his case. 25 26 In the alternative, the court finds that the lack of response to the motion indicates that plaintiff has conceded its merit. The undersigned has reviewed the motion and find that it 1 Dockets.Justia.com 1 has merit. It should therefore be granted. 2 3 IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to this case. 4 5 IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 8 one days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be filed and served within seven days after service of the objections. The parties 12 are advised that failure to file objections within the specified time may waive the right to appeal 13 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: February 22, 2011 15 /s/ Gregory G. Hollows ____________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 GGH:hm bray0051.41 22 23 24 25 26 2

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