Peck v. Blanks et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/18/2018 RECOMMENDING this action be dismissed without prejudice for failure to prosecute and to comply with a court order. Referred to Judge John A. Mendez; 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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ROY PECK, III,

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No. 2:17-cv-0430 JAM KJN P
Plaintiff,

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v.

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HOPKINS, et al.,

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FINDINGS & RECOMMENDATIONS

Defendants.

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Plaintiff is a former state prisoner, proceeding without counsel. By order filed December

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20, 2017, plaintiff was cautioned that failure to file an opposition to the pending motion to

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dismiss would be deemed as consent to have the: (a) action dismissed for lack of prosecution;

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and (b) action dismissed based on plaintiff’s failure to comply with these rules and a court order.

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(ECF No. 38 at 2.) “Such failure shall result in a recommendation that this action be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b).” (ECF No. 38 at 2.)

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On December 28, 2017, and January 10, 2018, two court orders were served on plaintiff’s

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address of record and returned by the postal service. Although it appears from the file that

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plaintiff’s copy of the December 20, 2017 order was returned, plaintiff was properly served. It is

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the plaintiff’s responsibility to keep the court apprised of his current address at all times.

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Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully

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effective.
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without

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prejudice for failure to prosecute and to comply with a court order. See 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, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections. Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: January 18, 2018

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/cw/peck0430.ftp

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