(PC) Micenheimer v. Kern Valley State Prison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CORY DWAYNE MICENHEIMER, 1:19-cv-00115-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 13 vs. BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, 14 KERN VALLEY STATE PRISON, et al., FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE 15 Defendants. (Doc. No. 22.) 16 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 17 18 19 20 21 22 Plaintiff, Corey Dwayne Micenheimer is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 24, 2019, plaintiff 24 filed the complaint commencing this action. (Doc. No. 1.) On February 11, 2019, the court 25 screened the complaint and issued an order dismissing the complaint for failure to state a claim 26 and violation of Rule 8(a) of the Federal Rules of Civil Procedure, with leave to file an amended 27 complaint within thirty days. (Doc. No. 7.) On July 1, 2019, plaintiff filed the first amended 28 complaint. (Doc. No. 15.) 1 On May 13, 2020, the court dismissed the first amended complaint for violation of Rules 2 8(a) and 18 of the Federal Rules of Civil Procedure, with leave to file a second amended 3 complaint within thirty days. (Doc. No. 22.) Plaintiff was granted two extensions of time, one 4 for sixty days and then another for thirty days to amend the complaint. (Doc. Nos. 24, 30.) The 5 deadlines for amending the complaint have now expired and plaintiff has not filed a second 6 amended complaint, or otherwise responded to the court’s order. As a result, there is no pleading 7 on file which sets forth any claims upon which relief may be granted. 8 Accordingly, IT IS HEREBY RECOMMENDED that: 9 1. Pursuant to 28 U.S.C. § 1915A, this case be dismissed, with prejudice, based on 10 plaintiff’s failure to obey a court order, failure to prosecute, and failure to state a 11 claim upon which relief may be granted under § 1983; and 12 2. The clerk be directed to close this case. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 15 (14) days from the date of service of these findings and recommendations, Plaintiff may file 16 written objections with the court. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: February 25, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28