Opinion
2:16-cv-0923 KJN P
11-22-2021
DWAYNE GILES, Plaintiff, v. TOM FELKER, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner, proceeding pro se. By order filed October 14, 2016, this action was stayed, and plaintiff was ordered to notify the court, within twenty-one days from the date plaintiff receives a decision from the Court of Appeals for the Ninth Circuit in Case No. 16-15683. To date, plaintiff has filed nothing further.
Review of the appellate record reflects that plaintiff's appeal in 16-15683 was addressed on April 21, 2017, and the mandate was spread on December 15, 2017. Giles v. Felker, No. 16-15683 (9th Cir.). The appellate court affirmed the grant of summary judgment based on plaintiff's failure to exhaust his administrative remedies prior to filing suit in federal court in 1 plaintiffs earlier case, Giles v. Felker, No. 2:11-cv-1825 WBS EFB (E.D. Cal.).
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 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. 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 California habeas case, and state bar records).
Almost four years have passed since the mandate was spread, yet plaintiff failed to inform this court of the appellate court's ruling. Therefore, the undersigned recommends that this action be dismissed based on plaintiffs failure to comply with the court's order and failure to diligently prosecute this action. Fed.R.Civ.P. 41(b).
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and
Further, IT IS RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; 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)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2