(PC) Solvey v. Gates ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, 1:19-cv-01444-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 vs. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE 14 S. GATES, et al., TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE 15 Defendants. (ECF No. 15.) 16 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 17 18 Stanley H. Solvey (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 15, 2019, Plaintiff filed 20 the Complaint commencing this action. (ECF No. 1.) On October 22, 2019, the court screened 21 the Complaint and issued an order dismissing the Complaint for failure to state a claim, with 22 leave to amend. (ECF No. 8.) On January 14, 2020, Plaintiff filed the First Amended Complaint. 23 (ECF No. 14.) On January 30, 2020, the court dismissed the First Amended Complaint for failure 24 to state a claim, with leave to file a Second Amended Complaint within thirty days. (ECF No. 25 15.) Plaintiff requested and was granted extensions of time to file the Second Amended 26 Complaint. The most recent deadline has now expired and Plaintiff has not filed the Second 27 Amended Complaint. As a result there is no pleading on file which sets forth any claims upon 28 which relief may be granted. 1 On July 27, 2020, Plaintiff notified the court that he does not intend to file the Second 2 Amended Complaint and stands on the First Amended Complaint. (ECF No. 26.) Plaintiff also 3 indicates that he shall oppose any recommendation to dismiss the case and shall appeal to the 4 Ninth Circuit if the case is dismissed. (Id.) 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 obey a court order, failure to prosecute, and failure to state 8 a claim upon which relief may be granted under § 1983; 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: August 9, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28