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Sherman v. Davi

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


July 29, 2009

JOSEPH A. SHERMAN, PLAINTIFF,
v.
CA. REAL ESTATE COMMISSIONER DAVI, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

On May 29, 2009, this court granted plaintiff's application to proceed in forma pauperis, and directed plaintiff to file, within thirty days, a Third Amended Complaint that met the specific concerns and requirements set forth in the court's detailed order. Dckt. No. 10. Plaintiff thereafter sought "relief" from the court's "judgment," Dckt. No. 11, wherein he asserted that his Second Amended Complaint was adequate, which the district judge denied on June 26, 2009, Dckt. No. 12. Plaintiff has not filed a further amended complaint, and the deadline for doing so has passed.

It is reasonable to infer that plaintiff has abandoned this case. Federal Rule of Civil Procedure 41(b) allows dismissal "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order . . ." See also E. D. Cal. L. R. 11-110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court"). Plaintiffs' pro se status does not derogate this authority. See E. D. Cal. L. R. 83-183 ("Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure and by these Local Rules. All obligations placed on 'counsel' by these Local Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules.").

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed in its entirety, based on plaintiffs' failure to prosecute, Fed. R. Civ. P. 41(b), and failure to comply with the federal and local rules of court, E. D. Cal. L. R. 11-110.

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 ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090729

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