(PC) Garcia v. Kurgan ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LUCIEN GARCIA, Case No. 2:22-cv-01068-TLN-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR 13 v. FAILURE TO PROSECUTE, FAILURE TO COMPLY WITH COURT ORDERS, AND 14 KATHLEEN ALLISON, et al., FAILURE TO STATE A CLAIM 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 On November 14, 2022, I screened plaintiff’s complaint and notified him that it alleged 18 cognizable excessive force and retaliation claims against defendant Kurgan. I notified plaintiff 19 that his other claims were not viable. ECF No. 19. I gave plaintiff thirty days either to file an 20 amended complaint or to advise the court that he wished to stand by his current complaint and to 21 proceed only with his excessive force and retaliation claims against defendant Kurgan. Id. at 6. I 22 also warned plaintiff that failure to comply with the November 14 order could result in dismissal. 23 Id. Plaintiff did not file either an amended complaint or a notice of election to proceed on the 24 cognizable claims. 25 Accordingly, on January 23, 2023, I ordered plaintiff to show cause within twenty-one 26 days why this action should not be dismissed. ECF No. 22. I notified him that if he wished to 27 continue with this action he must file, within twenty-one days, an amended complaint or 28 advisement that he wished to proceed only with his excessive force and retaliation claims against 1 | defendant Kurgan. I also warned him that failure to comply with the order would result in a 2 || recommendation that this action be dismissed. /d. at 2. 3 The deadline has passed, and plaintiff has not filed an amended complaint or otherwise 4 | responded to the January 23, 2023 order. 5 Accordingly, it is hereby RECOMMENDED that: 6 1. This action be dismissed for failure to prosecute, failure to comply with court orders, 7 | and failure to state a claim, for the reasons set forth in the November 14, 2022 and January 23, 8 | 2023 orders. 9 2. The Clerk of Court be directed to close the case. 10 These findings and recommendations are submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 | objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 | objections shall be served and filed within fourteen days after service of the objections. The 16 | parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 18 | v. Vist, 951 F.2d 1153 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 ( q Sty - Dated: _ April 5, 2023 ow—— 22 JEREMY D. PETERSON 54 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28