Swearington v. Wedell, et al

Filing 101

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/12/11 ORDERING that defendants are relieved of their obligation tofile a further pretrial statement; RECOMMENDING that this action be dismissed for failure to prosecute; 11 Amended Complaint referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DWAYNE SWEARINGTON,
Plaintiff,

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vs.
DR. WEDELL, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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/

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No. CIV S-06-1407 GEB EFB (TEMP) P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. By order filed January 12, 2011, plaintiff was directed to file a pretrial statement

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within thirty days. On February 2, 2011, plaintiff was granted an additional forty-five days in

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which to file his pretrial statement. The time for acting has passed and plaintiff has failed to

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comply.

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A party’s failure to comply with any order or with the Local Rules “may be grounds for

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imposition of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” Local Rule 11-110. The court may recommend that an action be dismissed with or

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without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1252 (9th Cir. 1992) (district court did not abuse discretion in

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dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended
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complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,

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1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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On July 15, 2008, the court directed the Clerk of the Court to send plaintiff a copy of the

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Local Rules of this Court, and explained that failure to comply with the Local Rules or any order

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of this court may result in a recommendation of dismissal. Furthermore, on April 30, 2009, the

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court issued a scheduling order stating that in the event this action survived any dispositive

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motions that were filed, the parties would be required to file pretrial statements pursuant to then

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Local Rule 16-281 and further admonished the parties that “the parties are advised that failure to

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file a pretrial statement may result in the imposition of sanctions, including dismissal of this

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action.” See Dckt. No. 37 at 5:13-14.

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Accordingly, it is hereby ORDERED that defendants are relieved of their obligation to
file a further pretrial statement.
Further, it is hereby RECOMMENDED that this action be dismissed for failure to
prosecute. See Fed. R. Civ. P. 16(f); Fed. R. Civ. P. 41(b); Local Rule 110.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after

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being served with these findings and recommendations, any party may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158

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F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 12, 2011.

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