(PS) McKinney v. Tehama County et al, No. 2:2010cv01139 - Document 14 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/18/10 ORDERING that the hearing date of 10/27/10 on defendants motions to dismiss, Dckt. Nos. 9 and 10 , is vacated; The status (pretrial scheduling) confere nce currently set for hearing on 12/15/10, is vacated. It is RECOMMENDED that this action be dismissed based on plaintiffs failure to prosecute the action; Defendants 9 and 10 motions to dismiss, be denied as moot; and Clerk of Court be directed to close this case. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(PS) McKinney v. Tehama County et al Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL GENE McKINNEY, 11 12 13 Plaintiff, No. CIV S-10-1139 FCD EFB PS vs. TEHAMA COUNTY; RICHARD SCHEULER; IRENE RODRIGUEZ, ORDER AND FINDINGS AND RECOMMENDATIONS 14 15 Defendants. _________________________________/ 16 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 17 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On August 6, 18 2010, defendants Richard Scheuler and Irene Rodriguez moved to dismiss plaintiff’s complaint 19 pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), and noticed the motion to be 20 heard on September 15, 2010. Dckt. No. 9. Then, on August 9, 2010, defendant Tehama County 21 filed a motion to dismiss pursuant to Rule 12(b)(6), and also noticed the hearing for September 22 15, 2010. Dckt. No. 10. 23 On September 9, 2010, because plaintiff had not filed either an opposition or a statement 24 of non-opposition to the motions, the undersigned continued the hearing on the motions to 25 October 27, 2010; ordered plaintiff to show cause, in writing, no later than October 13, 2010, 26 why sanctions should not be imposed for his failure to timely file an opposition or a statement of 1 Dockets.Justia.com 1 non-opposition to the pending motions; and directed plaintiff to file an opposition to the motions, 2 or a statement of non-opposition thereto, no later than October 13, 2010. Dckt. No. 13. The 3 undersigned further stated that “[f]ailure of plaintiff to file an opposition will be deemed a 4 statement of non-opposition to the pending motions, and may result in a recommendation that 5 this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).” Id. 6 Although the deadlines have now passed, the court docket reflects that plaintiff has not 7 filed a response to the order to show cause, an opposition to defendants’ motions, or a statement 8 of non-opposition to the motions. In light of plaintiff’s failures, the undersigned will recommend 9 that this action be dismissed for failure to prosecute and that defendants’ motions to dismiss be 10 denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The hearing date of October 27, 2010 on defendants’ motions to dismiss, Dckt. Nos. 9 13 14 15 and 10, is vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on December 15, 2010, is vacated.1 16 IT IS FURTHER RECOMMENDED that: 17 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 18 plaintiff’s failure to prosecute the action; 19 2. Defendants’ motions to dismiss, Dckt. Nos. 9 and 10, be denied as moot; and 20 3. The Clerk of Court be directed to close this case. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the May 10, 2010 and September 9, 2010 orders. See Dckt. Nos. 3, 13. However, if the recommendation of dismissal herein is not adopted by the district judge, the undersigned will reschedule the status conference and require the parties to submit status reports. 2 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: October 18, 2010. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3