Lucien v. Macomber et al.

Filing 51

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/9/2019 RECOMMENDING this action be dismissed for plaintiff's failure to prosecute and failure to comply with court orders. Referred to Judge William B. Shubb; Objections to F&R 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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JARON LUCIEN,

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No. 2:16-cv-2595 WBS DB P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

WOODEN,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff alleges he was subjected to cruel and unusual

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punishment when he was forced to sit in a holding cage until he urinated for urinalysis testing.

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On February 5, 2019, defendant filed a motion for summary judgment. On March 15, 2019, when

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plaintiff had not filed an opposition, or anything for that matter, the court ordered plaintiff to file

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an opposition within twenty days. (ECF No. 45.) The court warned plaintiff that if he failed to

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file an opposition, this court would recommend dismissal of this action.

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On April 8, 2019, plaintiff requested an extension of time to file an opposition. The court

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granted plaintiff a 45-day extension of time from the date of the order, April 11, 2019. (ECF No.

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47.) After that forty-five time period had passed and plaintiff had not filed an opposition, this

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court recommended this action be dismissed for plaintiff’s failure to comply with court orders.

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(ECF No. 48.) Plaintiff then filed another motion for an extension of time to file an opposition.
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(ECF No. 49.) In an order filed July 3, 2019, the court vacated its recommendation that the case

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be dismissed and granted plaintiff’s motion, giving plaintiff thirty additional days to file an

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opposition. (ECF No. 50.) Plaintiff was warned that if he failed to file a timely opposition, this

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court would again recommend this action be dismissed. Plaintiff was further advised that he must

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demonstrate extraordinary circumstances to justify any further extensions of time.

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Thirty days have passed and plaintiff has failed to file an opposition to defendant’s

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summary judgment motion or otherwise respond to the court’s July 3 order. Plaintiff has now had

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over six months to respond to the summary judgment motion and has failed to do so.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for

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plaintiff’s failure to prosecute and failure to comply with court orders. See E.D. Cal. R. 110; Fed.

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R. Civ. P. 41.

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These findings and recommendations will be 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, either party may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in waiver of the right to appeal the district court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 9, 2019

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DLB:9
DLB1/prisoner-civil rights/luci2595.fta fr2

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