(PC) Burke v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK BURKE, No. 2:23-cv-0768 KJN P 12 Plaintiff, 13 v. ORDER & FINDINGS & RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the reasons stated herein, the undersigned recommends dismissal of this 19 action. 20 On June 29, 2023, the undersigned dismissed plaintiff’s complaint with leave to amend. 21 (ECF No. 8.) Plaintiff appealed the order dismissing his complaint with leave to amend to the 22 Ninth Circuit Court of Appeals. (ECF No. 12.) On August 24, 2023, the Ninth Circuit dismissed 23 plaintiff’s appeal for lack of jurisdiction. (ECF No. 16.) On September 15, 2023, the Ninth 24 Circuit issued the mandate. (ECF No. 18.) 25 By order filed September 27, 2023, plaintiff was granted thirty days to file an amended 26 complaint. (ECF No. 19.) The September 27, 2023 order advised plaintiff that failure to file an 27 amended complaint within that time would result in the recommendation of dismissal of this 28 action. (Id.) Thirty days from that date passed and plaintiff did not file an amended complaint or 1 | otherwise respond to the court’s order. 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 3 || district judge to this action; and 4 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See 5 || Local Rule 110; Fed. R. Civ. P. 41(b). 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, plaintiff may file written objections 9 || with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 11 | failure to file objections within the specified time may waive the right to appeal the District 12 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 13 || Dated: November 2, 2023 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 Burke768.fta 20 21 22 23 24 25 26 27 28