Baker v. Alva et al

Filing 29

FINDINGS and RECOMMENDATIONS to Grant 26 Plaintiff's Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 04/13/15. Referred to Judge Ishii. Fourteen Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMMIE LEE BAKER,

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Plaintiff,
v.
J. ALVA, et al.,

CASE NO. 1:14-cv-01020-AWI-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT PLAINTIFF’S MOTION TO
DISMISS
(ECF No. 26)

Defendants.

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against
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Defendants Alva, Mendoza, Franco, and O’Daniels on Plaintiff’s Eighth Amendment

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failure to protect claim. (ECF Nos. 11 & 13.)
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On March 13, 2015, Plaintiff filed a motion to dismiss the action with prejudice on
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the ground he no longer has any dispute with Defendants requiring resolution by the
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Court. (ECF No. 26.) Defendants filed a statement of no opposition. (ECF No. 28.)
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Where a defendant has appeared in the action by filing an answer, Plaintiff may
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dismiss the action only by stipulation signed by all parties who have appeared or by
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court order on terms the Court deems proper. Fed. R. Civ. P. 41(a). Here, Defendants
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have filed an answer. (ECF No. 19.) No signed stipulation for dismissal is before the
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Court. Nevertheless, there is no objection to dismissal of the action with prejudice. The
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Court finds that dismissal with prejudice is proper. Accordingly, it is HEREBY

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RECOMMENDED that the action be dismissed with prejudice pursuant to Federal Rule

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of Civil Procedure 41(a)(2).

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These Findings and Recommendations are 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

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 13, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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