Spivey v. Baugham

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/8/2018 RECOMMENDING this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). Referred to Judge John A. Mendez; Objections to F&R due within 21 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 XAVIER SPIVEY, 12 13 14 15 No. 2:17-cv-1612 JAM AC P Petitioner, v. FINDINGS AND RECOMMENDATIONS DAVID BAUGHAM, Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a habeas corpus petition filed pursuant 18 to 28 U.S.C. § 2254. On October 9, 2017, respondent filed a motion to dismiss the petition. ECF 19 No. 11. On November 27, 2017, petitioner was ordered to file and serve, within twenty-one days, 20 an opposition or statement of non-opposition to the pending motion. ECF No. 14. In the same 21 order, petitioner was informed that failure to file an opposition would result in a recommendation 22 that this action be dismissed without prejudice for failure to prosecute pursuant to Federal Rule of 23 Civil Procedure 41(b). Id. The twenty-one-day period has now expired, and petitioner has not 24 responded to the court’s order. 25 26 27 28 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 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 1 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 objections shall be filed and served within fourteen days after service of the objections. The 5 parties are advised that failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 DATED: January 8, 2018 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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