(PS) Bumagat et al v. Shillinger et al, No. 2:2017cv02008 - Document 54 (E.D. Cal. 2018)
Court Description: ORDER signed by District Judge Troy L. Nunley on 9/27/18 DECLINING, to adopt the findings and recommendations (ECF No. 50 ) and REFERRING this matter back to the magistrate judge for a determination on the merits of the motion to dismiss and if necessary the motion to amend filed after the findings and recommendations. (Becknal, R)
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(PS) Bumagat et al v. Shillinger et al Doc. 54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 MAYNARD EDRALIN BUMAGAT, et al., Plaintiffs, 13 14 15 No. 2:17-cv-02008-TLN-GGH ORDER v. TERRY SHILLINGER, et al., Defendants. 16 17 Plaintiff Maynard Edralin Bumagat1 sues pro se and in forma pauperis in this action. 18 19 Before this Court are the findings and recommendations of the magistrate judge recommending 20 dismissal of this action pursuant to Federal Rule of Civil Procedure (“Rule”) 41(b). (ECF No. 21 40.) Plaintiff filed objections to the findings and recommendations (ECF No. 51), and a 22 subsequent Motion to Amend the Fourth Amended Complaint. (ECF No. 52.) Upon review of the findings and recommendations, the Court finds that dismissal with 23 24 prejudice under Rule 41(b) is not appropriate. The Court recognizes it has been a year since the 25 commencement of this action and that Plaintiff has failed to appear on one occasion and failed to 26 27 28 In an Order issued October 10, 2017, Plaintiff Bumagat was directed to eliminate a second named Plaintiff, Lorna Monsalud, from all further filings unless she took steps to acquire in forma pauperis status noting that she was identified to be a minor and would require representation to go forward. (ECF No. 3.) She has not appeared in any of the follow-on filings by Plaintiff Bumagat. 1 1 Dockets.Justia.com 1 respond to the motion to dismiss pending before the Court. However, these two instances do not 2 justify the sever remedy of dismissal under Rule 41(b) with prejudice. In light of Plaintiff’s 3 failure to respond to the motion to dismiss, there are other avenues the magistrate judge may take 4 in recommending dismissal, but Rule 41(b) is not a suitable avenue. Accordingly, the Court 5 hereby DECLINES to adopt the findings and recommendations (ECF No. 50). This matter is 6 referred back to the magistrate judge for a determination on the merits of the motion to dismiss 7 and if necessary the motion to amend filed after the findings and recommendations. 8 IT IS SO ORDERED. 9 10 Dated: September 27, 2018 11 12 13 14 Troy L. Nunley United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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