1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORBERT MAURICE PAYTON, No. 2:22-cv-1177 DJC AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MONTGOMERY, 15 Defendant. 16 17 On May 12, 2025, defendants filed a Motion to Dismiss and served plaintiff. ECF No. 36. 18 On June 25, 2025, the court received plaintiff’s notice of change of address. ECF No. 39. On 19 July 21, 2025, the court construed plaintiff’s notice of change of address as a motion for an 20 extension of time and granted plaintiff thirty days from the date of the order to file and serve 21 either an opposition to the motion to dismiss or a statement of non-opposition. ECF No. 40 at 5. 22 Plaintiff was warned that “[f]ailure to comply with [the court’s] order will result in a 23 recommendation that this action be dismissed without prejudice for failure to prosecute pursuant 24 to Federal Rule of Civil Procedure 41(b).” Id. 25 On September 23, 2025, after plaintiff failed to file an opposition or statement of non- 26 opposition to the motion to dismiss, the court issued an order providing plaintiff with a final 27 opportunity to file an opposition or statement of non-opposition to defendants’ motion to dismiss. 28 ECF No. 42. Plaintiff was warned that 1 [p]ursuant to Local Rule 230(l), ‘[f]ailure of the responding party to file an opposition or to file a statement of no opposition may be 2 deemed a waiver of any opposition to granting the motion and may result in the imposition of sanctions.’ E.D. Cal. L.R. 230(l). 3 Sanctions include dismissal for failure to prosecute and for failure to comply with these rules and a court order. 4 5 Id. at 1. 6 On October 7, 2025, the court received plaintiff’s statement of non-opposition, which 7 states plaintiff does not oppose defendants’ “motion to dismiss plaintiff’s request for an 8 injunction” and that “[p]laintiff is ready to proceed with pre-trial proceedings.” ECF No. 43. 9 This statement, however, is not a statement of non-opposition to the motion that is before the 10 court—defendants’ motion seeks dismissal of the entire action under Federal Rule of Civil 11 Procedure 12(b)(6) (ECF No. 36). Rather, plaintiff’s filing responds to defendants’ opposition to 12 plaintiff’s Declaration regarding Settlement and Motion for Relief, which this court construed in 13 part as a motion for a preliminary injunction and has already denied. See ECF No. 37-38, 40-41. 14 Because it appeared plaintiff misunderstood the court’s September 23rd order, he was 15 given a final opportunity to file an opposition to defendants’ Rule 12(b)(6) motion to dismiss, by 16 November 7, 2025. ECF No. 44. To avoid further confusion, the court directed the Clerk of the 17 Court to send plaintiff a copy of the motion at issue. Id. at 2-3. At that time, plaintiff was 18 advised that pursuant to Local Rule 230(l), if he failed to file an opposition or statement of no 19 opposition to defendant’s motion to dismiss, the court could dismiss this case for failure to 20 prosecute. Id. at 2. Plaintiff was further warned that “[f]ailure to comply with this order will 21 result in a recommendation that this action be dismissed without prejudice for failure to prosecute 22 pursuant to Federal Rule of Civil Procedure 41(b), without further warning.” Id. (emphasis in 23 original). 24 The deadline to file an opposition to defendant’s motion to dismiss has passed and 25 plaintiff has not filed a response to the motion or otherwise responded to the court’s October 14, 26 2025, order. Accordingly, the undersigned is recommending this action be dismissed for failure 27 to prosecute. 28 //// ] In recommending this action be dismissed for failure to prosecute, the court has 2 || considered “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 || manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 | disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v. 5 || Bonzelet,

(9th Cir. 1992) (citation omitted). Because this case cannot 6 || move forward without plaintiffs participation, the court finds the factors weigh in favor of 7 || dismissal. 8 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 9 || dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be filed and served within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 1991). 18 | DATED: November 20, 2025 ~ 19 AMhun—Clorne ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28