(HC) Caldwell v. Foss

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN CALDWELL, No. 2:19-cv-00679 TLN GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS V. FOSS, 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c).

20 On June 27, 2019, respondent filed a motion to dismiss. ECF No. 9. However, petitioner failed to file an opposition, or statement of non-opposition within the requisite deadline. See ECF No. 4. On August 19, 2019, the court ordered petitioner to show cause within 14 days, why this matter should not be dismissed for failure to prosecute and/or to follow a court order pursuant to Federal Rules of Civil Procedure 41(b). ECF No. 10. Petitioner was further informed that the filing of an opposition, or statement of non-opposition, within the timeframe would serve as cause and would discharge the June 17, 2019 order. Id. Based on petitioner’s lack of response to the court’s order to show cause, the undersigned issued findings and recommendations on October 22, 2019 recommending dismissal for failure to prosecute and for failure to comply with the court’s order. ECF No. 11 (citing Fed. R. Civ. P. 41(b); E.D. Local Rule 110). On November 15, 2019, petitioner filed a motion for extension of time to file objections to the undersigned’s October 22, 2019 findings and recommendations and to file a response to respondent’s motion to dismiss. ECF No. 12. Petitioner stated he was unable to timely respond due to prison lockdowns, power outage, petitioner’s transfers from different facilities, and his ignorance of the law. Id. On November 28, 2019, the undersigned vacated its October 22, 2019 findings and recommendations and granted petitioner’s request for an extension of time and granted petitioner thirty days from the date of the order to file a response to respondent’s motion to dismiss. ECF No. 14. Petitioner was again warned that failure to comply with the court’s deadlines and orders would result in a recommendation that this action be dismissed for failure to prosecute and/or to follow a court order pursuant to Federal Rules of Civil Procedure 41(b). Id. 12 This deadline has now passed and petitioner has not responded to the court’s order, nor taken any action to prosecute this case.

14 Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, with prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. Civ. P. 41(b); Local Rule 110.

17 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. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are 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).

25 Dated: February 3, 2020 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE