Opinion
No. CIV S-10-0577 EFB P
01-09-2012
SHANNON WHITE, Plaintiff, v. R. HILL, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a former state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On September 8, 2011, defendants Rutz, Hill, Hehir, Johnson, Vining, Caramanoff and Young filed a motion to dismiss on the ground that plaintiff has failed to exhaust his available administrative remedies. See Fed. R. Civ. P. 12(b); 42 U.S.C. § 1997e(a). Despite being granted an extension of time to do so, plaintiff failed to timely file an opposition or a statement of no opposition to the motion to dismiss. See Dckt. No. 36 (order granting plaintiff an extension of time; re-served on October 28, 2011 following plaintiff's filing of a notice of change of address).
On December 5, 2011, the court gave plaintiff twenty-one 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 time for acting has passed and plaintiff has not filed an opposition, a statement of no opposition or otherwise responded to the court's order.
Plaintiff has twice been warned that he must file a response to defendants' motion. Plaintiff has disobeyed this court's orders and failed to prosecute this action. The appropriate sanction is dismissal without prejudice.
Accordingly, it is ORDERED that the Clerk shall randomly assign a United States District Judge to this case.
Further, it is hereby 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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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE