Gomes Reynaldo v. Arnold

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/7/16 RECOMMENDING that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). Referred to Judge Kimberly J. Mueller; Objections to F&R due within 20 days.(Dillon, 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 ALFONSO GOMES REYNALDO, 12 Petitioner, 13 14 No. 2:15-cv-2182 KJM DB P v. FINDINGS & RECOMMENDATIONS A. ARNOLD, 15 Respondent. 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 17 18 writ of habeas corpus under 28 U.S.C. § 2254. On June 2, 2016, respondent moved to dismiss the 19 petition on the grounds that it is untimely and petitioner failed to exhaust his state remedies. 20 (ECF No. 14.) On August 15, 2016, petitioner was ordered to show cause why this action should 21 not be dismissed for his failure to respond to the June 2 motion. (ECF No. 17.) On August 25, 22 petitioner moved for a 60-day extension of time to respond to the motion. (ECF No. 18.) On 23 August 30, the court granted petitioner a 30-day extension of time. (ECF No. 19.) The thirty 24 days has expired and petitioner has not filed an opposition to the motion to dismiss or otherwise 25 responded to the court’s August 30 order. Local Rule 230(l) provides in part: “Failure of the responding party to file written 26 27 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 28 //// 1 1 the granting of the motion . . . .” In addition, Federal Rule of Civil Procedure 41(b) permits a 2 court to dismiss an action for failure to comply with any order of the court. 3 4 5 6 7 Petitioner has had four months to respond to respondent’s motion to dismiss, but has failed to do so. The court finds dismissal without prejudice appropriate under Rule 41(b). For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: October 7, 2016 16 17 18 19 20 21 DLB:9 DLB1/prisoner-habeas/Reyn2182.46fr 22 23 24 25 26 27 28 2

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