(PC) Smith v. Municipality of Fresno County et al

Filing 155

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/20/2024 RECOMMENDING that this action be dismissed without prejudice and that the 135 & 144 Motion for Summary Judgment be denied as moot. Referred to Judge Daniel J. Calabretta. Objections due within 14 days after being served these Findings and Recommendations. (Clemente Licea, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY PAUL SMITH,

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Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MUNICIPALTY OF FRESNO COUNTY,
et al.,
Defendants.

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No. 2:21-cv-01992 DJC AC

Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On January 20, 2023 defendants filed a motion for summary judgment. The

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On June 7, 2023, August 16, 2023, and finally on March 27, 2024 plaintiff was ordered to

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submit an in forma pauperis application for a non-prisoner as well as a proper opposition to the

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pending motion for summary judgment. ECF Nos. 145, 149, 154. Plaintiff was repeatedly

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warned that his failure to timely comply would result in a recommendation that this action be

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dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b). Despite multiple extensions of time, plaintiff has failed to submit the required IFP

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application or to file an opposition to defendants’ motion for summary judgment that complies

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with Rule 56 of the Federal Rules of Civil Procedure and Local Rule 260.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure

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41(b).

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2. The pending motions for summary judgment (ECF Nos. 135, 144) be denied as moot.

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3. The Clerk of Court be directed to close this case.

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 20, 2024

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