Benyamini v. Swett et al

Filing 105

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/12/2017 RECOMMENDING that this action be dismissed for failure to prosecute. Referred to District Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (York, M)

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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 ROBERT BENYAMINI, 12 13 14 No. 2:13-cv-735-KJM-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS M. SWETT, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 18 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment. ECF No. 98. Plaintiff 19 failed to file a timely opposition and on November 9, 2017, the court directed plaintiff to submit 20 his opposition within twenty-one days. ECF No. 103. Plaintiff was warned that his failure to file 21 an opposition could result in the dismissal of this action for failure to prosecute.1 Id.; see, e.g. 22 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local 23 rule). The twenty-one day period has now elapsed and plaintiff has not filed an opposition or any 24 other filing with the court. 25 1 26 27 28 Local Rule 183, governing persons appearing in pro se, provides that failure to comply with the Federal Rules of Civil Procedure and Local Rules may be grounds for dismissal, judgment by default, or other appropriate sanctions. Additionally, Local Rule 110 provides that failure to comply 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 inherent power of the Court.” 1 1 Defense counsel has filed a declaration sating that counsel received a “motion” from 2 plaintiff seeking indefinite continuance of this litigation which has not been filed with the court. 3 ECF No. 104 at 2. Plaintiff reportedly alleges in that unfiled motion that his father has obtained a 4 restraining order against him and, as a consequence, plaintiff is effectively homeless. Id. The 5 restraining order will be in effect until 2020. Id. at 22. 6 Plaintiff has not actually sought a stay from the court2 and, in any event, it is unclear how 7 a suitable stay could be crafted in light of his present circumstances. Plaintiff has not provided 8 any indication as to when he will be able to litigate effectively again, and stays should generally 9 be “of short, or at least reasonable, duration.” See Dependable Highway Express, Inc. v. 10 11 12 Navigators Ins. Co., 498 F.3d 1059, 1067 (9th Cir. 2007). For the reasons stated above, it is hereby RECOMMENDED that this action be DISMISSED for failure to prosecute. Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: December 12, 2017. 21 22 23 24 25 26 27 28 2 The court recognizes and takes judicial notice of the fact that plaintiff has sought a stay in a separate case before this district. See Benyamini v. Terry, 2:15-cv-2615-TLN-EFB, ECF No. 39. Plaintiff has not filed a similar motion in this case, however. Additionally, the court has recommended denying the motion for stay in Terry. Id., ECF No. 40. 2

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