(PC) Godoy v. Sacramento County Sheriff's Office ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK GODOY, 1:17-cv-00809-DAD-GSA-PC 12 Plaintiff, AMENDED FINDINGS AND RECOMMENDATIONS, RECOMMENDING 13 vs. THAT THIS CASE BE DISMISSED FOR FAILURE TO COMPLY WITH COURT 14 SACRAMENTO COUNTY SHERIFF’S ORDER1 OFFICE, et al., (ECF No. 14.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN (14) DAYS 17 18 19 Frank Godoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. On June 15, 2017, Plaintiff filed the 21 Complaint commencing this action. (ECF No. 1.) On June 27, 2018, the court dismissed the 22 Complaint for failure to state a claim, with leave to amend. (ECF No. 13.) On July 13, 2018, 23 Plaintiff filed the First Amended Complaint. (ECF No. 14.) 24 25 1 The findings and recommendations were amended to reflect that this case should be dismissed based on Plaintiff’s 26 failure to comply with a court order, not on Plaintiff’s failure to state a claim. When a district court dismisses an action because the plaintiff has not filed an amended complaint after being given leave to do so and has not notified 27 the court of his intention not to file an amended complaint, a federal court may deem the dismissal to be for failure to comply with a court order. Fed. R. Civ. P. 41(b). Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017) 28 1 On April 30, 2019, the court dismissed the First Amended Complaint, with leave to file 2 a Second Amended Complaint within thirty days. (ECF No. 17.) The thirty-day deadline has 3 now expired and Plaintiff has not filed a Second Amended Complaint or otherwise responded to 4 the court’s order. As a result, there is no pleading on file which sets forth any claims upon which 5 relief may be granted. The court should dismiss this case based on Plaintiff’s failure to comply 6 with the court’s order. 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be 9 DISMISSED, based on Plaintiff’s failure to comply with the court’s order; and 10 2. The clerk be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days from the date of service of these findings and recommendations, Plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: August 9, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28