(PC) Giles v. Felker ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWAYNE GILES, No. 2:16-cv-0923 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 TOM FELKER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. By order filed October 14, 2016, this 18 action was stayed, and plaintiff was ordered to notify the court, within twenty-one days from the 19 date plaintiff receives a decision from the Court of Appeals for the Ninth Circuit in Case No. 16- 20 15683. To date, plaintiff has filed nothing further. 21 Review of the appellate record reflects that plaintiff’s appeal in 16-15683 was addressed 22 on April 21, 2017, and the mandate was spread on December 15, 2017. Giles v. Felker, No. 16- 23 15683 (9th Cir.).1 The appellate court affirmed the grant of summary judgment based on 24 plaintiff’s failure to exhaust his administrative remedies prior to filing suit in federal court in 25 1 The court may take judicial notice of facts that are “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot 26 reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 27 2010). It is appropriate to take judicial notice of court records. See White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010) (taking judicial notice of court docket sheet, proceedings in another 28 California habeas case, and state bar records). 1 || plaintiffs earlier case, Giles v. Felker, No. 2:11-cv-1825 WBS EFB (E.D. Cal.). 2 Almost four years have passed since the mandate was spread, yet plaintiff failed to inform 3 || this court of the appellate court’s ruling. Therefore, the undersigned recommends that this action 4 || be dismissed based on plaintiff's failure to comply with the court’s order and failure to diligently 5 || prosecute this action. Fed. R. Civ. P. 41(b). 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign 7 || adistrict judge to this case; and 8 Further, IT IS RECOMMENDED that this action be dismissed without prejudice. See 9 || Local Rule 110; Fed. R. Civ. P. 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 28 U.S.C. § 636(b)(1). Within fourteen days 12 || after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 14 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 16 | (9th Cir. 1991). 17 || Dated: November 22, 2021 i Aectl Aharon 19 KENDALL J. NE /eile0923.sty.fte UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28