(PC) Holston v. Cruz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THERON KENNETH HOLSTON, No. 2:22-cv-1949 KJM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MARIO CRUZ et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff initially filed a complaint and 18 motion to proceed in forma pauperis in conjunction with a motion to seal these documents and a 19 request to proceed under a pseudonym on October 27, 2022. (ECF Nos. 1-3.) The court denied 20 plaintiff’s request to proceed under a pseudonym and motion to seal on November 2, 2022. (ECF 21 No. 5.) The court struck plaintiff’s complaint for failure to comply with Federal Rule of Civil 22 Procedure 10(a) and directed plaintiff to file a new complaint within thirty days. (Id. at 4.) 23 Plaintiff failed to file an amended complaint within thirty days. The undersigned therefore 24 recommended that this action be dismissed for failure to prosecute and failure to comply with a 25 court order on March 29, 2023. (ECF No. 7.) 26 Plaintiff filed objections to the findings and recommendations, in which he explained that 27 he was briefly released from custody and received both the November 2, 2022, order and the 28 findings and recommendations on April 3, 2023. (ECF No. 8.) The undersigned then vacated the 1 | findings and recommendations and granted plaintiff thirty days to file an amended complaint. 2 | (ECF No. 9.) Plaintiff was warned that failure to abide by the court’s order and file an amended 3 | complaint would result in a recommendation that this action be dismissed. (1d.) 4 Those thirty days have passed, and plaintiff has not filed an amended complaint or 5 || otherwise responded to the court’s order. Therefore, the undersigned will recommend this action 6 | be dismissed without prejudice for failure to prosecute and failure to comply with a court order. 7 | Fed. R. Civ. P. 41(b); E.D. Cal. R. 110. 8 For the foregoing reasons, IT IS RECOMMENDED that: 9 1. This action be dismissed without prejudice; and 10 2. The Clerk of the Court be directed to close this case. 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)(). Within fourteen (14) 13 | days after being served with these findings and recommendations, plaintiff may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 16 | failure to file objections within the specified time may waive the right to appeal the District 17 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: July 27, 2023 20 1 ORAH BARNES pp: 15 UNITED STATES MAGISTRATE JUDGE 22 | DB/DB Prisoner Ibox/Civil Rights/R/hols1949.fta fr 23 24 25 26 27 28