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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TOMMIE LEE BAKER, 11 12 13 14 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. 15 FOURTEEN (14) DAY OBJECTION DEADLINE 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against 18 Defendants Alva, Mendoza, Franco, and O’Daniels on Plaintiff’s Eighth Amendment 19 failure to protect claim. (ECF Nos. 11 & 13.) 20 On March 13, 2015, Plaintiff filed a motion to dismiss the action with prejudice on 21 the ground he no longer has any dispute with Defendants requiring resolution by the 22 Court. (ECF No. 26.) Defendants filed a statement of no opposition. (ECF No. 28.) 23 Where a defendant has appeared in the action by filing an answer, Plaintiff may 24 dismiss the action only by stipulation signed by all parties who have appeared or by 25 court order on terms the Court deems proper. Fed. R. Civ. P. 41(a). Here, Defendants 26 have filed an answer. (ECF No. 19.) No signed stipulation for dismissal is before the 27 Court. Nevertheless, there is no objection to dismissal of the action with prejudice. The 28 1 Court finds that dismissal with prejudice is proper. Accordingly, it is HEREBY 2 RECOMMENDED that the action be dismissed with prejudice pursuant to Federal Rule 3 of Civil Procedure 41(a)(2). 4 These Findings and Recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 6 fourteen (14) days after being served with these Findings and Recommendations, any 7 party may file written objections with the Court and serve a copy on all parties. Such a 8 document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Any reply to the objections shall be served and filed within fourteen 10 (14) days after service of the objections. The parties are advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. 12 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 13 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. Dated: April 13, 2015 /s/ 17 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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