(PC) Birrell v. DiTomas

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, aka Bella- No. 2:22-cv-01834-KJM-DMC-P Christina Birrell, 12 Plaintiff, 13 ORDER v. 14 MICHELE DiTOMAS, 15 Defendant. 16

17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. 19 § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern 20 District of California local rules. 21 On June 25, 2024, the magistrate judge filed findings and recommendations, which were 22 served on the parties, and which contained notice that the parties may file objections within the 23 time specified therein. The findings and recommendations were re-served on plaintiff on July 25, 24 2024. No objections to the findings and recommendations have been filed. 25 The court presumes that any findings of fact are correct. See Orand v. United States, 26 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 27 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 28 by the magistrate judge are reviewed de novo by both the district court and [the appellate] 1 | court[.]”). Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record. The court adds that plaintiffs lack of prosecution has delayed resolution 3 || of this case, and the court cannot wait indefinitely for plaintiff to respond. Further, there is a risk 4 || of prejudice to defendant in requiring her to continue defending this action when plaintiff appears 5 || to have abandoned the case. See Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) 6 || (“The law presumes injury from unreasonable delay”). Finally, the court finds less drastic 7 || measures are not available—plaintiff was warned that failure to file an amended complaint could 8 | result in dismissal of this action and plaintiff received ample time to object to the findings and 9 || recommendations. Given this, the court finds dismissal is proper. 10 Accordingly, IT IS HEREBY ORDERED: 1] 1. The findings and recommendations filed June 25, 2024, see ECF No. 33, are 12 | adopted in full. 13 2. This action is dismissed without prejudice for lack of prosecution and failure to 14 | comply with court rules and orders. 15 3. The Clerk of the Court is directed to enter judgment and close this file. 16 | DATED: October 4, 2024.

18 □ STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28