Just v. Cochran

Filing 36

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/22/14 ORDERING the clerk of the court shall assign this case to a District Judge. U.S. District Judge Kimberly J. Mueller randomly assigned to this action. Also, RECOMMENDING that pursuant to Local Rule 183(b), this action be dismissed without prejudice for failure to prosecute; and defendants' pending motions 31 and 32 be denied as moot. Motions 31 and 32 referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, 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 JEREMY JUST, 12 13 14 15 No. 2:13-cv-01988 AC P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS PAT COCHRAN, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the magistrate 19 judge, ECF No. 15, however, defendants have neither consented nor declined to consent. 20 Accordingly, the clerk will be ordered to assign this case to a district judge. 21 On April 30, 2014, some of the defendants moved to dismiss the complaint. ECF No. 31. 22 On the same day, all defendants separately moved for summary judgment on exhaustion grounds. 23 ECF No. 32. On October 10, 2014, this court ordered plaintiff to file his opposition to the motion 24 to dismiss, or a statement of no opposition, within thirty days. ECF No. 35. In the same order, 25 the court granted plaintiff sixty days to file his opposition, or a statement of no opposition, to 26 defendants’ motion for summary judgment. Id. 27 The order was served on plaintiff’s address of record, but on October 15, 2014, the order 28 was returned by the postal service as undeliverable. It appears that plaintiff has failed to comply 1 1 with Local Rule 183(b), which provides that “[i]f mail directed to a plaintiff in propria persona by 2 the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and 3 opposing parties within sixty-three (63) days thereafter of a current address, the Court may 4 dismiss the action without prejudice for failure to prosecute.” More than sixty-three days have 5 passed since the court order was returned by the postal service and plaintiff has failed to notify 6 the court of a current address. 7 8 9 10 11 Accordingly, IT IS HEREBY ORDERED THAT the Clerk of the Court shall assign this case to a district judge. Further, IT IS HEREBY RECOMMENDED THAT: 1. Pursuant to Local Rule 183(b), this action be DISMISSED, without prejudice, for failure to prosecute; and 12 2. 13 These findings and recommendations are submitted to the United States District Judge Defendants’ pending motions (ECF Nos. 31 & 32), be DENIED as moot. 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 15 days after being served with these findings and recommendations, plaintiff 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.” Plaintiff is advised that 18 failure to file objections within the specified time may waive the right to appeal the District 19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: December 22, 2014 21 22 23 24 25 26 27 28 2

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