(PC) Schmaus v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ERIK SCHMAUS, No. 2:20-cv-1356 KJM AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. COVELLO, et al., 15 Defendants. 16 17 By order issued June 23, 2021, the complaint was screened and Plaintiff was given the 18 opportunity either to proceed on a single cognizable claim against Defendant Smith or to amend 19 the complaint. ECF No. 10. At that time, Plaintiff was given fourteen days to return the Notice 20 on How to Proceed form, which was to inform the Court whether he wanted to proceed with the 21 cognizable claim or amend the complaint. Id. at 8-10. Plaintiff was also told that a failure to 22 return the notice form would result in a recommendation that Claims One and Three as well as 23 Defendants Covello, Bal, Wong, Vaughn and Gates be dismissed from this action without 24 prejudice. Id. at 8-9. 25 On July 19, 2021, having not received Plaintiff’s notice form, the undersigned drafted 26 findings and recommendations which were consistent with the June 23, 2021 screening order. 27 Compare ECF No. 13 at 3, with ECF No. 10 at 8-9. Thereafter, on July 23, 2021, the court 28 received and docketed Plaintiff’s notice form and accompanying motion to stay or for a ninety- 1 day extension of time.1 ECF Nos. 14, 15. The notice form indicated that Plaintiff wanted to 2 amend the complaint. See ECF No. 15. In response to these filings, on July 28, 2021, the 3 undersigned vacated the July 19, 2021, findings and recommendations and granted Plaintiff a 4 ninety-day extension of time to file an amended complaint. ECF No. 17. At that time, Plaintiff 5 was warned that absent exigent circumstances, no further extensions of time to amend the 6 complaint would be granted. See id. at 3. 7 On October 6, 2021, Plaintiff requested a further sixty-day extension of time. ECF No. 8 19. Plaintiff claimed that he was being returned to SATF-Corcoran in mid-October, and that due 9 to mandatory quarantining upon his return, as well as the time it would take to have his property 10 returned to him, he would be unable to file his amended complaint by his October 2021, deadline. 11 Id. at 3-4. As a result, Plaintiff requested an extended deadline of December 23, 2021 for his 12 amended complaint. Id. at 4. On October 14, 2021, the Court granted Plaintiff’s extension 13 request. ECF No. 20. At that time, Plaintiff was warned that absent exigent circumstances, no 14 additional extensions of time would be granted. See id. at 2. 15 On December 3, 2021, Plaintiff filed a third request for an extension of time. ECF No. 22. 16 In support of his request, Plaintiff referenced the fact that he had been “in the ‘hospital’ 8 of the 17 last 10 months,” that he had difficulty writing, and that he had been told that not even priority 18 prison law library users had been able to access the library four hours a month. See id. at 2. 19 Plaintiff did not indicate that he was hospitalized or that he was currently ill. See generally ECF 20 No. 22. 21 On December 8, 2021, the Court granted the request in part. ECF No. 23. The 22 undersigned noted the extensions of time that Plaintiff had previously been granted, and pointed 23 out that the deficiencies in Plaintiff’s original complaint were largely fact related—which means 24 that legal research was not required for amendment. Id. at 1-2. Finally, the Court noted that 25 Plaintiff’s handwriting in previous filings had been legible, and that as a result, he did not need 26 1 In the extension of time request, Plaintiff stated that a ninety-day extension to file the amended 27 complaint was necessary because he was hospitalized in a different prison because he had a spine infection, and he had none of his legal material with him. See ECF No. 14. He requested up to 28 and including October 23, 2021, to file his amended complaint. See id. at 2. 1 | additional time to find someone to write out the amended complaint for him. Id. at 2. 2 || accordingly, Plaintiff was granted a sixty-day extension of time to file an amended complaint; he 3 || was clearly told that it would be his final one. See id. at 2-3. 4 More than sixty days have passed, and Plaintiff has not filed an amended complaint, nor 5 || has he responded to Court’s order in any way. Given these facts, as well as the multiple 6 || opportunities Plaintiff has been given over the past nine months to file an amended complaint, the 7 || undersigned shall recommend that this action be dismissed for failure to obey court orders and for 8 | failure to prosecute. 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED without 10 || prejudice for failure to obey court orders and for failure to prosecute. See Local Rule 110; Fed. 11 | R. Civ. P. 41(b). 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, Plaintiff may file written objections 15 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 16 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 18 | (9th Cir. 1991). 19 | DATED: March 2, 2022 ~ Cttt0 Lhar—e_ 20 ALLISONCLAIRE. 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28