Winters v. Cate et al

Filing 24

ORDER DISMISSING 1 Action, Without Prejudice signed by Magistrate Judge Sheila K. Oberto on 8/8/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT ANTHONY WINTERS,

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CASE NO. 1:10-cv-02115-SKO PC

Plaintiff,

ORDER DISMISSING ACTION, WITHOUT
PREJUDICE

v.
(Docs. 13 and 19)

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MATTHEW L. CATE, et al.,

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Defendants.
/

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Plaintiff Robert Anthony Winters, a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 8, 2010. On April 18, 2011,

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the Court screened Plaintiff’s complaint and dismissed it, with leave to amend, for failure to comply

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with Federal Rule of Civil Procedure 8(a). 28 U.S.C. § 1915A. The Court provided Plaintiff with

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detailed instructions regarding compliance with Rule 8(a) and Federal Rule of Civil Procedure 18(a),

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and granted Plaintiff thirty days within which to amend. In separate orders filed concurrently, the

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Court denied Plaintiff’s motion for a preliminary injunction and denied Plaintiff’s motions for an

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order to produce his trust account statement and for sanctions.

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On May 11, 2011, Plaintiff appealed all three orders, and on May 18, 2011, citing to Yourish

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v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) and WMX Techs., Inc. v. Miller, 104 F.3d

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1133 (9th Cir. 1997) (en banc), Plaintiff notified the Court of his intent not to amend in compliance

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with the screening order. The appellate court limited Plaintiff’s appeal to the denial of his motion

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for a preliminary injunction on May 26, 2011, and summarily affirmed the Court’s ruling on August

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2, 2011.
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In light of the appellate court’s resolution of Plaintiff’s appeal, the Court now considers

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Plaintiff’s notice filed on May 18, 2011. Plaintiff has exercised his right to stand on his pleading by

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notifying the Court that he does not intend to file an amended complaint. Edwards v. Marin Park,

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Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004). In such a situation, the Court is constrained to accept

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Plaintiff’s election and dismiss the action. Id. at 1064.

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Accordingly, this action is HEREBY ORDERED DISMISSED, without prejudice, for failure
to comply with Rule 8(a), and the Clerk of the Court shall enter judgment. Id.

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IT IS SO ORDERED.
Dated:
ie14hj

August 8, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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