(PC)Dingle v. Tesluk ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. DINGLE, No. 2:20-cv-1878 JAM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GREGORY C. TESLUK, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendants violated his rights under the Eighth Amendment. 19 By order dated November 5, 2020 the court screened the complaint. (ECF No. 7.) It 20 found plaintiff’s allegations failed to state a claim. The complaint was dismissed with sixty days 21 leave to amend. On January 27, 2021, the undersigned issued findings and recommendations 22 recommending that this action be dismissed for failure to file an amended complaint. (ECF No. 23 11.) Thereafter, plaintiff filed objections stating that a fellow inmate has been assisting him with 24 this case, that inmate has all the materials related to this action, and that he cannot meet with that 25 inmate because inmate movement is restricted due to the COVID-19 pandemic. (ECF No. 12.) 26 He requested a “postpone[ment] of these proceedings until after the coronavirus threat and [the 27 prison is] back to a normal program.” 28 //// 1 The court declined to grant a stay, but vacated the January 27, 2021 findings and 2 || recommendations and granted plaintiff an additional 60 days to file an amended complaint. (ECF 3 | No. 13.) Afterthe time for filing an amended complaint again expired, the court issued an order 4 | to show cause directing plaintiff to file an amended complaint or dismiss this action within thirty 5 | days. (ECF No. 15.) Those thirty days have passed, and plaintiff has not filed an amended 6 | complaint, requested additional time to file an amended complaint, or otherwise respond ed to the 7 | court’s order. Accordingly, the court will recommend that this action be dismissed for failure to 8 || prosecute and failure to comply with court orders. 9 For the reasons set forth above, IT IS HEREBY RECOMMENDED that this action be 10 || dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, plaintiff may file written objections 14 || withthe court and serve a copy on all parties. Such a document should be captioned “Objections 15 | to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 || objections within the specified time may waive the right to appeal the District Court’s order. 17 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 || Dated: August 16, 2021 19 20 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 || DB:12 DB/DB Prisoner Inbox/Civil Rights/R/ding1878.f&r.dism 28