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Harley S. Bridgeman, Jr v. Benjamin B. Wagner; Jason Ehrlinspiel; Kendall J.

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


July 1, 2011

HARLEY S. BRIDGEMAN, JR., PLAINTIFF,
v.
BENJAMIN B. WAGNER; JASON EHRLINSPIEL; KENDALL J. NEWMAN, DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On April 28, 2011, defendants moved to dismiss plaintiff's complaint for lack of jurisdiction and for failure to state a claim, and noticed the motion to be heard on June 8, 2011. Dckt. No. 14.

On May 27, 2011, because plaintiff had not filed either an opposition or a statement of non-opposition to the motion, the undersigned continued the hearing on the motion to July 13, 2011; ordered plaintiff to show cause, in writing, no later than June 29, 2011, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than June 29, 2011. Dckt. No. 17. The undersigned further stated that "[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that this action be dismissed for lack of prosecution and/or for failure to comply with court orders and this court's Local Rules. See Fed. R. Civ. P. 41(b)." Id.

Although the deadlines have now passed, the court docket reflects that plaintiff has not filed a response to the order to show cause, an opposition to the motion, or a statement of non-opposition to the motion. In light of plaintiff's failures, the undersigned will recommend that this action be dismissed for failure to prosecute the action and for failure to comply with court orders and Local Rules, and that defendants' motion to dismiss be denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110.

Accordingly, IT IS HEREBY ORDERED that: 1. The hearing date of July 13, 2011 on defendants' motion to dismiss, Dckt. No. 14, is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on October 12, 2011, is vacated.*fn1

IT IS FURTHER RECOMMENDED that:

1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders and Local Rules;

2. Defendants' motion to dismiss, Dckt. No. 14, be denied as moot; and

3. The Clerk be directed to close this case.

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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