(PC) Diaz v. Hurley ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ENRIQUE DIAZ, No. 2:19-cv-1241 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 ASSOCIATE WARDEN HURLEY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 I. Background 21 On May 26, 2022, plaintiff filed objections to the December 29, 2021 findings and 22 recommendations, seeking another extension of time to file his second amended complaint.1 23 (ECF No. 84.) Plaintiff claimed that he was prepared to file his amended pleading within thirty 24 days, and argued the court should vacate the findings and recommendations and accept the 25 amended pleading. 26 27 1 Over a year ago, on May 21, 2021, plaintiff’s amended complaint was dismissed with leave to file a second amended complaint. (ECF No. 59.) Since then, plaintiff has been granted numerous 28 extensions of time. 1 Plaintiff signed his objections on May 18, 2022. In light of those objections, the 2 magistrate judge held the findings and recommendations in abeyance and granted plaintiff an 3 extension of time in which to file his second amended complaint. Plaintiff was ordered to present 4 his second amended complaint to prison staff for mailing on or before Friday, June 17, 2022. 5 Plaintiff was cautioned that the court would allow a reasonable time for the amended pleading to 6 arrive by mail from the California Medical Facility in Vacaville, but that if the second amended 7 complaint was not received by June 27, 2022, the findings and recommendations would be 8 forwarded to the district court. Plaintiff did not file his second amended complaint by June 27, 9 2022. 10 On June 29, 2022, plaintiff filed his second notice of interlocutory appeal from the court’s 11 order denying plaintiff’s request for temporary restraining order and preliminary injunction. 12 (ECF No. 86.) But it appears this second appeal is frivolous because the Ninth Circuit already 13 dismissed plaintiff’s first appeal on the same issue for lack of jurisdiction. (ECF No. 68.) The 14 court thus retains jurisdiction of plaintiff’s case under Chuman v. Wright, 960 F.2d 104, 105 (9th 15 Cir. 1992). See 20 Moore’s Federal Practice – Civil § 303.32 (2022) (“[a] district judge who 16 concludes that an appeal is clearly frivolous may ignore the notice of appeal and proceed with the 17 case as if the appeal had not been taken. To hold otherwise would enable a party to manipulate 18 the court with dilatory tactics.”). 19 II. Findings and Recommendations 20 On December 29, 2021, the magistrate judge filed findings and recommendations, which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. Following three extensions of time, 23 plaintiff filed objections to the findings and recommendations, but did not file a second amended 24 complaint. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 27 findings and recommendations to be supported by the record and by proper analysis. 28 ///// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed December 29, 2021 (ECF No. 76), are 3 || adopted in full; and 4 2. This action is dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 5 || DATED: August 18, 2022. 6 7 ( ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28