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Dexter Brown v. Correctional Sergeant D. Swan

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


January 30, 2013

DEXTER BROWN, PLAINTIFF,
v.
CORRECTIONAL SERGEANT D. SWAN, ET AL.,
DEFENDANTS.

FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On September 10, 2012, plaintiff filed a motion to voluntarily dismiss this action without prejudice and without "the assessment of a penalty/strike." Motion to Voluntary Recall/Dismiss this Civil Action, filed September 10, 2012, at 1. Therein, plaintiff represents that he is seeking dismissal due to "unlawful and deliberate actions of CDCR officials" that interfered with his ability to prosecute this action. Id. Plaintiff also states that he has "lost the aid and logistical support of plaintiff's peers in supporting this civil action . . . through the unlawful and obstructionist abuses of discretion" of CDCR personnel and that he has a number of chronic medical conditions that make it too difficult for him to prosecute this action in light of the alleged obstructions. Id. at 1-2.

On October 17, 2012, defendants filed a document styled "Defendants' Non-Opposition, In Part, and Opposition to Plaintiff's Motion to Voluntarily Dismiss." Therein, defendants represent that they do not oppose plaintiff's motion to voluntarily dismiss this action but they dispute plaintiff's claim that CDCR officials have obstructed prosecution of this action. Defendants also request dismissal of the action with prejudice.

Following defendants' October 17, 2012 filing, plaintiff filed three motions. Due to contentions raised in one of those motions, by order filed January 4, 2013, plaintiff was granted a period of fifteen days to inform the court in writing whether he still seeks voluntary dismissal of this action or, instead, whether he wants to withdraw his September 10, 2012 motion for voluntary dismissal. Plaintiff was cautioned that failure to respond to the January 4, 2013 order would result in a recommendation that this action be dismissed without prejudice. The fifteen day period has now passed, and plaintiff has not responded in any way to the court's order.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 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-one 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).

20130130

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