(PC) Pena v. Sherman

Opinion

ALFREDO RUDY PENA, 1:18-cv-01527-LJO-GSA-PC

Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITH PREJUDICE, FOR PLAINTIFF’S FAILURE TO STATE A CLAIM, STUART SHERMAN, et al., FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE Defendants. (ECF No. 9.)

OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

Alfredo Rudy Pena (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 5, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On September 16, 2019, the court screened the Complaint and dismissed it for failure to state a claim, with leave to amend. 28 U.S.C. § 1915A. (ECF No. 6.) On October 21, 2019, Plaintiff filed the First Amended Complaint. (ECF No. 7.) On December 11, 2019, the court screened the First Amended Complaint and issued an order dismissing the First Amended Complaint for failure to state a claim with leave to file a Second Amended Complaint within thirty days. (ECF No. 9.) The thirty-day deadline has now expired and Plaintiff has not filed a Second Amended Complaint nor otherwise responded to the court’s order. As a result there is no pleading on file which sets forth any claims upon which relief may be granted. Therefore, the court finds that this case should be dismissed, with prejudice, for Plaintiff’s failure to state a claim, failure to obey a court order, and failure to prosecute. Accordingly, IT IS HEREBY RECOMMENDED that: 1. Pursuant to 28 U.S.C. § 1915A, this case be DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon which relief may be granted under § 1983, failure to comply with 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: January 27, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE