Eleson v. Lizarraga

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/13/2017 RECOMMENDING this action be dismissed without prejudice for failure to state a claim and failure to prosecute. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

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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 ERIC RICHARD ELESON, 12 13 14 15 No. 2:15-cv-0216-GEB-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS JOE A. LIZARRAGA, Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 On April 26, 2017, the court screened plaintiff’s amended complaint pursuant to 28 21 U.S.C. § 1915A. The court dismissed plaintiff’s complaint, explained the deficiencies therein and 22 granted plaintiff thirty days in which file an amended complaint to cure the deficiencies. ECF 23 No. 25. The order warned plaintiff that failure to comply would result a recommendation that this 24 action be dismissed for failure to state a claim. The time for acting has passed and plaintiff has 25 not filed an amended complaint, or otherwise responded to the court’s order. 26 A party’s failure to comply with any order or with the Local Rules “may be grounds for 27 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 28 inherent power of the Court.” E.D. Cal. Local Rule 110. The court may dismiss an action with or 1 1 without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in 3 dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended 4 complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 5 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule 6 regarding notice of change of address affirmed). 7 Accordingly, it is hereby RECOMMENDED that this action be DISMISSED without 8 prejudice for failure to state a claim and failure to prosecute. Fed. R. Civ. P. 41(b); E. D. Cal. 9 Local Rule 110; 28 U.S.C. 1915A. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 objections shall be served and filed within fourteen days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 18 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: June 13, 2017. 20 21 22 23 24 25 26 27 28 2

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