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Jones v. Yates

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


January 27, 2010

DAMON JONES, PLAINTIFF,
v.
JAMES YATES, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro sen and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983.

On August 18, 2009, Defendant filed a motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff failed to state a claim upon which relief could be granted. Plaintiff failed to file opposition to the motion or a statement of non opposition. On October 9, 2009, a recommendation of dismissal was entered, recommending dismissal of this action for Plaintiff's failure file opposition to the motion. On December 23, 2009, an order was entered by the District Court, declining to adopt the findings and recommendations. The District Court noted that Plaintiff was not give proper notice of the motion to dismiss.

On January 5, 2010, an order to show cause was entered, advising Plaintiff that he is required by local rule to respond to the Auguat 18, 2009, motion to dismiss. The order to show cause noted that Plaintiff failed to file a response to the motion to dismiss, or the October 9, 2009, recommendation of dismissal. Plaintiff was specifically advised that "It is within the inherent power of the court to sua sponte dismiss a case for lack of prosecution." Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Plaintiff was ordered to show cause, within twenty days, why this action should not be dismissed for his failure to prosecute.

On January 13, 2010, Plaintiff filed a form for consent to the exercise of magistrate judge jurisdiction. The form indicates that counsel for Defendants declined magistrate judge jurisdiction. The form includes Plaintiff's signature, but does not in any way show cause why this action should not be dismissed for Plaintiff's failure to prosecute. Further, Plaintiff has yet to file an opposition to the motion to dismiss.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without prejudice, for Plaintiff's failure to prosecute.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 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." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 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).

IT IS SO ORDERED.

20100127

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