Williams v. Ortiz et al

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/12/2012 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES L. WILLIAMS,
Plaintiff,

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vs.

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No. CIV S-09-0540 JAM EFB P

L. ORTIZ, et al.,

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Defendants.

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

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U.S.C. § 1983. On September 2, 2011, defendants Stinson, Lebeck and Ortiz filed a motion for

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summary judgment. Dckt. No. 20; see Fed. R. Civ. P. 56. On September 20, 2010, the court

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advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal

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Rules of Civil Procedure and informed plaintiff that failure to file an opposition to such a motion

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could be considered waiver of any such opposition. Dckt. Nos. 11; see Rand v. Rowland, 154

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F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v.

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Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). Plaintiff failed to file an opposition or

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statement of no opposition to the motion for summary judgment. Accordingly, on October 27,

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2011, the court reminded plaintiff of his obligation to file an opposition, granted him twenty-one

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days in which to file it and warned him that failure to comply would result in a recommendation
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of dismissal. To date, no opposition has been filed nor has plaintiff otherwise communicated

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with the court. Plaintiff has been warned that he must file a response to defendants’ motion.

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Plaintiff has disobeyed this court’s orders and failed to prosecute this action. The appropriate

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sanction is dismissal without prejudice.

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Accordingly, it is RECOMMENDED that this action be dismissed without prejudice.
See Fed. R. Civ. P. 41(b).

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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 fourteen days

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

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 12, 2012.

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