(PC) Diggs v. John Doe ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LONNELL B. DIGGS, 1:19-cv-00766-NONE-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, Plaintiff, RECOMMENDING THAT THIS CASE BE 13 DISMISSED, WITH PREJUDICE, FOR vs. FAILURE TO STATE A CLAIM 14 (ECF No. 1.) JOHN DOE, et al., 15 OBJECTIONS, IF ANY, DUE IN Defendants. FOURTEEN (14) DAYS 16 17 18 19 20 I. BACKGROUND 21 Lonnell B. Diggs (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on May 31, 2019. (ECF No. 1.) On June 21, 2019, Plaintiff filed the 24 First Amended Complaint as a matter of course. (ECF No. 9.) On July 15, 2019, Plaintiff filed 25 a motion to amend and lodged a Second Amended Complaint. (ECF Nos. 11, 12.) The court 26 granted Plaintiff’s motion to amend and the Second Amended Complaint was filed on July 15, 27 2019. (ECF Nos. 13, 14.) On October 2, 2020, the court screened Plaintiff’s Second Amended 28 Complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a claim, with leave to 1 amend within thirty days. (ECF No. 15.) The thirty-day deadline has now expired and Plaintiff 2 has not filed a Third Amended Complaint or otherwise responded to the court’s order.1 As a 3 result, there is no pleading on file which sets forth any claims upon which relief may be granted. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Pursuant to 28 U.S.C. § 1915A, this case be DISMISSED, with prejudice, based 6 on Plaintiff’s failure to state a claim upon which relief may be granted under § 7 1983; and 8 2. The Clerk be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days from the date of service of these findings and recommendations, Plaintiff may file 12 written objections with the court. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18 19 Dated: November 24, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 1 The United States Postal Service returned the order on October 16, 2020 as undeliverable. A notation on the envelope indicates that Plaintiff is paroled . Plaintiff has not notified 28 the court of any change in his address. Absent such notice service at a party’s prior address is fully effective. Local Rule 182(f).