(PC) Leonard v. Coalinga State Hospital

Opinion

HARVEY MACK LEONARD, 1:18-cv-01049-DAD-GSA-PC

Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE vs. DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO COMPLY WITH COALINGA STATE HOSPITAL, et al., COURT ORDER AND FAILURE TO PROSECUTE Defendants. FOURTEEN- DAY DEADLINE TO FILE

Harvey Mack Leonard (“Plaintiff”) is a civil detainee1 at Coalinga State Hospital in Coalinga, California, proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On August 6, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On May 24, 2019, the court screened the Complaint and issued an order requiring Plaintiff to either file an amended complaint or notify the court that he is willing to proceed only with his excessive force claim against defendant Barrett found cognizable by the court. (ECF No. 7.) On June 10, 2019, Plaintiff filed the First Amended Complaint. (ECF No. 9.)

1 Individuals detained pursuant to California Welfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). On February 10, 2020, the court screened the First Amended Complaint and issued an order requiring Plaintiff, within thirty days, to either file a Second Amended Complaint or notify the court of his willingness to proceed only with his excessive force, assault and battery claims against defendants Barrett and Gardenhire found cognizable by the court. (ECF No. 12.) The thirty-day deadline has now expired and Plaintiff has neither filed a Second Amended Complaint or otherwise responded to the court’s order. Accordingly, IT IS HEREBY RECOMMENDED that: 1. Pursuant to 28 U.S.C. § 1915A, this case be DISMISSED, without prejudice, based on Plaintiff’s failure to obey a court order and failure to prosecute; and 2. The Clerk be directed to close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days from the date of service of these findings and recommendations, Plaintiff may file written objections with the court. Such a 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: March 27, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE