Blyman v. Warden

Filing 41

FINDINGS and RECOMMENDATION that the 1 Petition be Dismissed for Failure to Prosecute signed by Magistrate Judge Sheila K. Oberto on 9/2/2016. Referred to Judge Dale A. Drozd. Objections to F&R due by 10/11/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEPHEN DANIEL BLYMAN,

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Petitioner,

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v.

No. 1:14-cv-00836-DAD-SKO HC
FINDINGS AND RECOMMENDATION
THAT THE PETITION BE DISMISSED
FOR FAILURE TO PROSECUTE

DANIEL PARAMO, Warden,

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Respondent.

(Doc. 40)

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Petitioner Stephen Daniel Blyman is a state prisoner proceeding with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On June 1, 2016, this Court lifted the order of stay

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and abeyance in the above-captioned case and directed Petitioner to file an amended petition

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including the newly exhausted claims by July 29, 2016. Petitioner did not file an amended

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petition. As a result, on August 10, 2016, the Magistrate Judge issued an order to show cause

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why the petition should not be dismissed for failure to prosecute. Although Petitioner was

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required to respond to the order within 15 days, Petitioner has filed neither a response nor an
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amended petition.
The Court has discretion to impose any and all sanctions authorized by statute or rule or

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within the inherent power of the Court, including dismissing the action, based on a petitioner’s

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failure to comply with a court order. F.R.Civ.P. 11; Local R. 110.

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///

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Conclusion and Recommendation

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Based on the foregoing, the undersigned hereby RECOMMENDS that the Court dismiss
the petition for failure to prosecute.

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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, Petitioner may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Petitioner is advised that failure to file objections

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within the specified time may constitute waiver of the right to appeal the District Court's order.
Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

September 2, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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