(PC) Pena v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALFREDO RUDY PENA, 1:18-cv-01527-LJO-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITH PREJUDICE, FOR PLAINTIFF’S FAILURE TO STATE A CLAIM, 14 STUART SHERMAN, et al., FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE 15 Defendants. (ECF No. 9.) 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 18 19 Alfredo Rudy Pena (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 5, 2018, 21 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On September 16, 2019, the 22 court screened the Complaint and dismissed it for failure to state a claim, with leave to amend. 23 28 U.S.C. § 1915A. (ECF No. 6.) On October 21, 2019, Plaintiff filed the First Amended 24 Complaint. (ECF No. 7.) 25 On December 11, 2019, the court screened the First Amended Complaint and issued an 26 order dismissing the First Amended Complaint for failure to state a claim with leave to file a 27 Second Amended Complaint within thirty days. (ECF No. 9.) The thirty-day deadline has now 28 expired and Plaintiff has not filed a Second Amended Complaint nor otherwise responded to the 1 court’s order. As a result there is no pleading on file which sets forth any claims upon which 2 relief may be granted. Therefore, the court finds that this case should be dismissed, with 3 prejudice, for Plaintiff’s failure to state a claim, failure to obey a court order, and failure to 4 prosecute. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Pursuant to 28 U.S.C. § 1915A, this case be DISMISSED, with prejudice, based 7 on Plaintiff’s failure to state a claim upon which relief may be granted under § 8 1983, failure to comply with a court order, and failure to prosecute; and 9 2. The Clerk be directed to close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days from the date of service of these findings and recommendations, Plaintiff may file 13 written objections with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: January 27, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28