(PC) Foust v. Warden ( 2022 )

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CARL FOUST, No. 2:21-CV-0312-KJM-DMC-P 11 Plaintiff, 12 v. ORDER 13 WARDEN, 14 Defendant. 15 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 17 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 18 Eastern District of California local rules. 19 On August 9, 2021, the Magistrate Judge filed findings and recommendations, 20 which were served on the parties and which contained notice that the parties may file objections 21 within the time specified therein. Plaintiff requested a 30-day extension to file an amended 22 complaint, ECF No. 25, which this court granted, ECF No. 29. Plaintiff filed a document the 23 court construed as a second amended complaint. ECF No. 30.1 However, the document 24 contained no pleadings or allegations; and the magistrate judge then allowed plaintiff 30 days to 25 refile. ECF No. 32. Plaintiff requested an additional 30 days, ECF No. 35, and the magistrate 26 judge obliged, ECF No. 38. 27 1 Although docketed as a first amended complaint, this filing was in fact the second. See 28 ECF No. 19. ] Given that plaintiff has never filed an amended complaint despite having been 2 || given ample time to do so, the court returns to the magistrate judge’s initial recommendation to 3 || dismiss for lack of prosecution. The court presumes that any findings of fact are correct. See 4 | Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of 5 || law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) 6 || (‘[D]eterminations of law by the magistrate judge are reviewed de novo by both the district court 7 || and [the appellate] court... .”). Having reviewed the file, the court finds the findings and 8 || recommendations to be supported by the record and by the proper analysis. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The findings and recommendations filed August 9, 2021, are adopted in 11 | full; 12 2. This action is dismissed without prejudice for lack of prosecution and 13 || failure to comply with court rules and orders; and 14 3. The Clerk of the Court is directed to enter judgment and close this file. 15 || DATED: March 3, 2022. 16 13 CHIEF ED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28