(HC) Caldwell v. Foss ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN CALDWELL, No. 2:19-cv-00679 TLN GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 V. FOSS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge 19 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 21 failed to file an opposition, or statement of non-opposition, within the deadline set forth by the 22 court. See ECF No. 4 at 2 ¶4. On August 19, 2019, the court ordered petitioner to show cause 23 within 14 days, why this matter should not be dismissed for failure to prosecute and/or to follow a 24 court order pursuant to Federal Rules of Civil Procedure 41(b). ECF No. 10. Petitioner was 25 further informed that the filing of an opposition, or statement of non-opposition, within the 26 timeframe would serve as cause and would discharge the August 19, 2019 order. Id. Petitioner 27 has not responded to the court’s orders, nor taken any action to prosecute this case. 28 //// 1 Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without 2 prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. 3 Civ. P. 41(b); Local Rule 110. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendations.” Any response to the objections shall be filed and served within 9 fourteen days after service of the objections. The parties are advised that failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 11 Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: October 22, 2019 /s/ Gregory G. Hollows 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28