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Dietle v. Pleasant Valley State Prison

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 8, 2008

DARRELL L. DIETLE, PLAINTIFF,
v.
PLEASANT VALLEY STATE PRISON, ET AL., DEFENDANTS.

FINDINGS & RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, initiated this action with a document styled as a motion by which plaintiff sought leave to file a civil rights action in the Sacramento Division of this Court. By order filed May 29, 2008, plaintiff's motion was denied without prejudice and plaintiff was granted thirty days in which to file a complaint and to submit an application requesting leave to proceed in forma pauperis or to submit the appropriate filing fee.

On June 4, 2008, plaintiff filed a motion for court-ordered access to the prison law library. On June 16, 2008 and June 27, 2008, plaintiff filed applications to proceed in forma pauperis. On June 16, 2008 and June 18, 2008, plaintiff filed motions for an extension of time to file a complaint. Finally, on June 16, 2008, June 27, 2008, and July 17, 2008, plaintiff filed requests for court orders requiring a state Board of Claims to return to plaintiff documents relevant to the § 1983 claims he seeks to bring in this action.

By order filed July 21, 2008, the California Attorney General was directed to respond to the contentions in documents filed by plaintiff on June 4, 2008 and June 27, 2008, concerning alleged denial of access to the prison law library and to legal materials. On September 4, 2008, the Attorney General filed a response accompanied by evidence that plaintiff has had access to the prison law library, and has also refused to access the library on several occasions.

In the July 21, 2008 order, plaintiff's requests for extension of time were granted and plaintiff was given an additional period of thirty days in which to file a complaint. Ruling on plaintiff's in forma pauperis application was deferred pending the filing of a complaint.*fn1 The thirty day period has now expired, and plaintiff has not filed a complaint or otherwise responded to the court's July 21, 2008 order.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 11-110; Fed. R. Civ. P. 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 days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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