(PC) Elliott v. Herrera

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER ELLIOTT, No. 2:22-cv-1072 DAD AC P 12 Plaintiff, 13 v. ORDER 14 G. HERRERA, 15 Defendant. 16 17 By order filed February 19, 2025, the district judge adopted the Findings and 18 Recommendations of the undersigned in full, granting in part and denying in part defendant’s 19 motion to dismiss. ECF No. 42. Plaintiff’s Eighth Amendment claim was dismissed with leave 20 to amend, while his First Amendment claim was allowed to proceed. Id. at 2-3. Plaintiff was 21 given thirty days to file an amended complaint. Id. at 3. Thirty days passed, and plaintiff did not 22 file an amended complaint or otherwise respond to the court’s order. 23 On March 31, 2025, the court received notice that the February 19, 2025, order was 24 undeliverable and that they were unable to forward it to plaintiff. At that time, using the Inmate 25 Locator website operated by the California Department of Corrections and Rehabilitation 26 (“CDCR”) the court found plaintiff was incarcerated at California Health Care Facility.1 As a 27 1 See Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate 28 determination by sources whose accuracy cannot reasonably be questioned); see also City of 1 | one-time courtesy, the court directed the Clerk of the Court to update plaintiff’s address 2 || accordingly, and re-serve plaintiff with the February 19, 2025, order. ECF No. 43 at 2. The court 3 || granted plaintiff one final opportunity to file an amended complaint within thirty days of the 4 || service of the order. Id. Plaintiff was warned that if he did not file an amended complaint within 5 || the thirty days provided or notify the court that he does not intend to file an amended complaint, 6 || the case would proceed immediately only on the First Amendment retaliation claim. Id. Thirty 7 || days have long passed, and plaintiff has not filed an amended complaint or otherwise responded 8 || to the court’s orders. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. This case will proceed only on plaintiff's First Amendment retaliation claim. 11 2. Within twenty-one days, defendants must file an answer to the First Amendment 12 | retaliation claim in plaintiff's complaint (ECF No. 1). 13 | DATED: July 8, 2025 ~ 14 Chttien— Clare ALLISON CLAIRE Id UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 Q_—_ x\/ Sausalito v. O'Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a 28 | record of a state agency not subject to reasonable dispute.”).