(HC) Simmons v. Kernan, No. 2:2017cv02276 - Document 13 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/8/18 DIRECTING the clerk to randomly assign a district judge. District Judge Morrison C. England, Jr. added. It is further RECOMMENDED that this action be dismissed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:17-cv-2276-MCE-EFB (HC).(Coll, A)
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(HC) Simmons v. Kernan Doc. 13 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MELVIN JOSEPH SIMMONS, Jr.,, 11 Petitioner, 12 13 No. 2:17-cv-2276-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS SCOTT KERNAN, 14 Respondent. 15 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. On October 5, 2018, the court summarily dismissed petitioner’s application for 18 a writ of habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases. ECF No. 19 11. The order granted petitioner leave to amend within thirty days and warned petitioner that 20 failure to comply would result in a recommendation that this action be dismissed. Id. The time 21 for acting has passed and petitioner has not filed an amended petition or otherwise responded to 22 the court’s order.1 23 A party’s failure to comply with any order or with the Local Rules “may be grounds for 24 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 25 inherent power of the Court.” E.D. Cal. Local Rule 110. The court may dismiss an action with or 26 without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. 27 28 1 Petitioner has also failed to pay the $5.00 filing fee as directed in the court’s October 5, 2018 order. 1 Dockets.Justia.com 1 Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in 2 dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended 3 complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 4 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule 5 regarding notice of change of address affirmed). 6 7 Accordingly, it is hereby ORDERED that the Clerk is directed to randomly assign a United States District Judge to this case. 8 Further, it is hereby RECOMMENDED that this action be DISMISSED. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. Failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 17 1991). In his objections petitioner may address whether a certificate of appealability should issue 18 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 19 2254 Cases in the United States District Courts (the district court must issue or deny a certificate 20 of appealability when it enters a final order adverse to the applicant). 21 DATED: November 8, 2018. 22 23 24 25 26 27 28 2