(PC) White v. Hill et al, No. 2:2010cv00577 - Document 40 (E.D. Cal. 2012)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 01/09/12 ORDERING the clerk of the court shall randomly assign a U.S. District Judge to this action. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Motion to Dismiss 34 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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(PC) White v. Hill et al Doc. 40 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SHANNON WHITE, Plaintiff, 11 12 13 14 No. CIV S-10-0577 EFB P vs. R. HILL, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. / 15 16 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 17 42 U.S.C. § 1983. On September 8, 2011, defendants Rutz, Hill, Hehir, Johnson, Vining, 18 Caramanoff and Young filed a motion to dismiss on the ground that plaintiff has failed to 19 exhaust his available administrative remedies. See Fed. R. Civ. P. 12(b); 42 U.S.C. § 1997e(a). 20 Despite being granted an extension of time to do so, plaintiff failed to timely file an opposition 21 or a statement of no opposition to the motion to dismiss. See Dckt. No. 36 (order granting 22 plaintiff an extension of time; re-served on October 28, 2011 following plaintiff’s filing of a 23 notice of change of address). 24 On December 5, 2011, the court gave plaintiff twenty-one days to file an opposition or 25 statement of non-opposition and warned him that failure to do so could result in a 26 recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b). The time for acting 1 Dockets.Justia.com 1 has passed and plaintiff has not filed an opposition, a statement of no opposition or otherwise 2 responded to the court’s order. 3 Plaintiff has twice been warned that he must file a response to defendants’ motion. 4 Plaintiff has disobeyed this court’s orders and failed to prosecute this action. The appropriate 5 sanction is dismissal without prejudice. 6 7 8 9 Accordingly, it is ORDERED that the Clerk shall randomly assign a United States District Judge to this case. Further, it is hereby RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Turner v. 16 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: January 9, 2012. 18 19 20 21 22 23 24 25 26 2

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