Rodriguez v. Swarthout

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/14/2015 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAHU RODRIGUEZ,

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No. 2:14-cv-2812 TLN CKD P

Petitioner,
v.

FINDINGS AND RECOMENDATIONS

GARY SWARTHOUT,
Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On April 6, 2015, respondent filed a motion to dismiss.

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On May 19, 2015, the court ordered petitioner to file an opposition to the motion and petitioner

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was warned that failure to do so would result in dismissal under Rule 41(b) of the Federal Rules

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of Civil Procedure. Petitioner has not filed an opposition to the motion and the time for filing an

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opposition has expired.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

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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 may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” In his objections petitioner may address

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whether a certificate of appealability should issue in the event he files an appeal of the judgment

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in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must

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issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

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Any response to the objections shall be served and filed within fourteen days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: September 14, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rodr2812.dis

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