(PC) O'Connor v. J. Lizarraga ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENN O’CONNOR, No. 2: 19-cv-658 KJM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. For the reasons stated herein, the undersigned recommends that plaintiff’s 20 request to voluntarily dismiss this action with prejudice be granted. 21 On October 27, 2021, defendants filed a summary judgment motion. (ECF No. 99.) On 22 November 30, 2021, the undersigned granted plaintiff a thirty-days extension of time to file his 23 opposition. (ECF No. 103.) 24 On December 10, 2021, plaintiff filed a motion for appointment of counsel or, in the 25 alternative, dismissal with prejudice. (ECF No. 104.) In this motion, plaintiff requested that 26 counsel be appointed to prepare his opposition to defendants’ summary judgment motion. 27 Plaintiff alleged that he was too physically ill to prepare his opposition. Plaintiff requested that 28 this action be dismissed with prejudice if the court did not appoint counsel. 1 On January 4, 2022, the undersigned denied plaintiff's motion for appointment of counsel. 2 | (ECF No. 105.) The undersigned found that plaintiff's health problems did not constitute 3 || exceptional circumstances warranting appointment of counsel. The undersigned found that 4 | plaintiff appeared to have suffered from most of the health problems for some time. Plaintiff filed 5 || this action in 2019 and had competently litigated it since that time. The undersigned granted 6 || plaintiff thirty days to file an opposition to defendants’ summary judgment motion. If plaintiff 7 || did not file an opposition within that time, the undersigned would consider plaintiff's request to 8 | voluntarily dismiss this action with prejudice. 9 Thirty days passed and plaintiff did not file an opposition to defendants’ summary 10 || judgment motion. In an abundance of caution, rather than just grant the dismissal the undersigned 11 || recommends that plaintiff's request to voluntarily dismiss this action with prejudice be granted. 12 | Fed. R. Civ. P. 41(a). 13 Accordingly, IT IS HEREBY ORDERED that defendants’ summary judgment motion 14 | (ECF No. 99) is vacated; and 15 IT IS HEREBY RECOMMENDED that plaintiffs request to voluntarily dismiss this 16 || action with prejudice be granted. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 19 | after being served with these findings and recommendations, any party may file written 20 || objections with the court and serve a copy on all parties. Such a document should be captioned 21 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 || objections shall be filed and served within fourteen days after service of the objections. The 23 || parties are advised that failure to file objections within the specified time may waive the right to 24 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 || Dated: April 12, 2022 %6 Foci) Aharon 27 KENDALL J. NE Oconn658. fr UNITED STATES MAGISTRATE JUDGE 28