Loeb v. Audette, et al

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/09/09 ORDERING that defendants are relieved of their obligation to file a pretrial statement. Also, recommending that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. AUDETTE, et al., Defendants. / ORDER AND FINDINGS AND RECOMMENDATIONS DESMON LOEB, Plaintiff, No. CIV S-07-0139 GEB EFB P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Currently pending is defendants Audette, Weston and Callison's request to be relieved of their obligation to file a pretrial statement. As defendants correctly point out in their request, plaintiff has failed to timely file a pretrial statement in accord with this court's December 18, 2008, order. A party's failure to comply with any order or with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Local Rule 11-110. The court may recommend that an action be dismissed with or without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1252 (9th Cir. 1992) (district court did not abuse discretion in 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, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff's failure to comply with local rule regarding notice of change of address affirmed). On May 24, 2007, the Clerk of the Court sent to plaintiff a copy of the Local Rules of this Court, and explained that failure to comply with the Local Rules or any order of this court may result in a recommendation of dismissal. Furthermore, on September 17, 2007, the court issued a discovery and scheduling order stating that in the event this action survived any dispositive motions that were filed, the parties would be required to file pretrial statements pursuant to Local Rule 16-281. On December 18, 2008, this court ordered plaintiff to file his pretrial statement within thirty days. The thirty-day period has passed and plaintiff has not filed a pretrial statement or otherwise responded to that order. Accordingly, defendants need not file a pretrial statement and the undersigned recommends this action be dismissed. Accordingly, it is hereby ORDERED that defendants are relieved of their obligation to file a pretrial statement. Further, it is hereby RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 16(f); Local Rule 11-110. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: February 9, 2009.

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