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Towner v. Lesane

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


June 29, 2010

VERNON TOWNER, PLAINTIFF,
v.
LESANE, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff proceeds without counsel and seeks relief for alleged civil rights violations. See 42 U.S.C. § 1983. On March 26, 2010, defendant moved to dismiss this action on the ground that plaintiff failed to exhaust administrative remedies. Dckt. No. 19. On January 5, 2010, the court advised plaintiff of the requirements for opposing a motion to dismiss and/or for summary judgment for failure to exhaust available administrative remedies. See Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). That order also informed plaintiff of the requirements for filing an opposition to the pending motion and that failure to oppose such a motion might be deemed a waiver of opposition to the motion. Plaintiff failed to file an opposition.

On May 4, 2010, the court gave plaintiff 21 days to file an opposition or statement of non-opposition and warned him that failure to do so could result in a recommendation that this action be dismissed. See Fed. R. Civ. P. 41(b). The 21 days have passed and plaintiff did not file an opposition or a statement of no opposition.*fn1

Plaintiff has been warned that he must file a response to defendant's motion. Plaintiff has disobeyed this court's orders. The appropriate sanction is dismissal without prejudice.

Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. See 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 fourteen 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).


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