Cooksey v. Win et al

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/18/2012 RECOMMENDING that this action be dismissed without prejudice; defendant's 16 motion to dismiss be denied as moot; and the clerk be directed to close the case. Referred to Judge Garland E. Burrell, Jr.; 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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MARCELLUS COOKSEY,
Plaintiff,

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No. 2:11-cv-1374 GEB EFB P

Defendants.

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FINDINGS AND RECOMMENDATIONS

vs.
K. WIN, et al.,

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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 April 2, 2012, defendants Chokatos and Fortune filed a motion to dismiss.

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See Fed. R. Civ. P. 12(b), 12(b)(6). On May 11, 2012, the court gave plaintiff twenty-one days

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to file an opposition or statement of non-opposition and warned him that failure to do so could

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result in a recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b). The time for

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acting has passed and plaintiff has not filed an opposition or a statement of no opposition. He

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did, however, file a letter with the court stating that he will “not be able to continue with this

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suit.” Dckt. No. 19.

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

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has disobeyed this court’s orders and failed to prosecute this action. It appears that plaintiff has

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abandoned the case. The appropriate action is dismissal without prejudice.
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Accordingly, it is hereby RECOMMENDED that:

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1. This action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); E.D. Cal. Local

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Rule 110, 183(b).

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2. Defendant’s motion to dismiss, Dckt. No. 16, be denied as moot.

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3. The Clerk be directed to close the case.

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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: June 18, 2012.

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