Develder v. Hirshler et al

Filing 76

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/22/2017 RECOMMENDING this action be dismissed without prejudice. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. DEVELDER, 12 Plaintiff, 13 14 15 v. No. 2:09-cv-1803-TLN-EFB P FINDINGS AND RECOMMENDATIONS J. HIRSCHLER, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. On October 21, 2016, defendant Hirshler filed a motion for summary judgment, 19 ECF No. 65, which also informed plaintiff of the requirements for opposing a motion for 20 summary judgment. See Fed. R. Civ. P. 56; Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 21 1998). The time allowed for responding to the motion expired, and plaintiff failed to file an 22 opposition or otherwise respond to the motion. 23 On January 25, 2017, the court warned plaintiff that failure to respond to defendant’s 24 motion could result in a recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b). 25 The court also granted plaintiff a 21-day extension of time to respond. The time for acting has 26 once again passed and plaintiff has not filed an opposition, a statement of no opposition, or 27 otherwise responded to the court’s order. Plaintiff has disobeyed this court’s orders and failed to 28 prosecute this action. The appropriate action is dismissal without prejudice. 1 1 2 Accordingly, it is hereby RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); E.D. Cal. Local Rule 110. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 Dated: February 22, 2017. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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