Stribling v. Defazio et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/15/2013 RECOMMENDING that this action be dismissed for failure to state a claim and failure to prosecute. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AARON STRIBLING, 11 Plaintiff, No. 2:12-cv-2729 JAM EFB P vs. 12 13 J. DEFAZIO, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 18 U.S.C. § 636(b)(1). On May 8, 2013, the court dismissed plaintiff’s complaint. The dismissal order 19 20 explained the complaint’s deficiencies, gave plaintiff 30 days to file an amended complaint 21 correcting those deficiencies, and warned plaintiff that failure to file an amended complaint 22 would result in this action being dismissed for failure to state a claim. The time for acting has 23 passed and plaintiff has not filed an amended complaint or otherwise responded to the court’s 24 order. 25 26 A party’s failure to comply with any order or with the Local Rules “may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the 1 1 inherent power of the Court.” E.D. Cal. Local Rule 110. The court may recommend that an 2 action be dismissed with or without prejudice, as appropriate, if a party disobeys an order or the 3 Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not 4 abuse discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-file 5 an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 6 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local 7 rule regarding notice of change of address affirmed). 8 Accordingly, it is hereby RECOMMENDED that this action be dismissed for failure to 9 state a claim and failure to prosecute. See 28 U.S.C. § 1915A; Fed. R. Civ. P. 41(b); E.D. Cal. 10 Local Rule 110. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: July 15, 2013. 19 20 21 22 23 24 25 26 2

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