(HC) Wren v. Yates, No. 2:2010cv01735 - Document 17 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/8/2010 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
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(HC) Wren v. Yates Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JEFF WREN, Petitioner, 11 12 vs. 13 No. CIV S-10-1735 MCE EFB P JAMES YATES, FINDINGS AND RECOMMENDATIONS Respondent. 14 / 15 16 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. 17 See 28 U.S.C. § 2254. On September 22, 2010, respondent filed a motion to dismiss the petition. 18 On October 27, 2010, the court informed petitioner that failure to file a written opposition or a 19 statement of no opposition may be deemed a waiver of any opposition to the motion, gave 20 petitioner 21 days to file an opposition or statement of non-opposition and warned him that 21 failure to do so would result in recommendation that this action be dismissed. See Fed. R. Civ. 22 P. 41(b). 23 The 21 days have passed and petitioner has not filed an opposition or a statement of no 24 opposition and has not otherwise responded to the October 27, 2010 order, although court 25 records reflect that petitioner was properly served with the motion and the October 27, 2010 26 order cautioning petitioner that he must respond to respondent’s motion. 1 Dockets.Justia.com 1 A party’s failure “to file written opposition or to file a statement of no opposition may be 2 deemed a waiver of any opposition to the granting of the motion and may result in the imposition 3 of sanctions.” L. R. 230(l). Failure to comply with any order or with the Local Rules “may 4 be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or 5 within the inherent power of the Court.” L. R. 110. The court may dismiss this action with or 6 without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in 8 dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended 9 complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 10 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule 11 regarding notice of change of address affirmed). Here, the appropriate sanction is dismissal 12 without prejudice. 13 14 Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2254 Cases. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: December 8, 2010. 23 24 25 26 2