Yarbrough v. Marin et al

Filing 15

ORDER Directing Plaintiff to File Notice Clarifying His Intent, signed by Magistrate Judge Barbara A. McAuliffe on 2/5/18. 14-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDDIE YARBROUGH,

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Plaintiff,

Case No. 1:17-cv-00185-BAM (PC)
ORDER DIRECTING PLAINTIFF TO FILE
NOTICE CLARIFYING HIS INTENT

v.
(ECF Nos. 13, 14)
MARIN, et al.,
FOURTEEN (14) DAY DEADLINE

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Defendants.

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Plaintiff Eddie Yarbrough (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action.
On December 6, 2017, the Court issued a screening order granting Plaintiff leave to file an

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amended complaint within thirty (30) days. (ECF No. 12.) The Court expressly warned Plaintiff

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that the failure to file an amended complaint in compliance with the Court’s order would result in

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a recommendation for dismissal of this action, with prejudice, for failure to obey a court order

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and for failure to state a claim. (Id. at 13.) Plaintiff’s second amended complaint was due on or

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before January 8, 2018. Plaintiff failed to file an amended complaint or otherwise communicate

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with the Court.

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Accordingly, on January 19, 2018, the Court issued findings and recommendations that

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this action be dismissed, with prejudice, due to Plaintiff’s failure to state a claim, failure to obey a

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Court order, and failure to prosecute. (ECF No. 13.) Those findings and recommendations were

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served on Plaintiff and contained notice that any objections thereto were to be filed within
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fourteen (14) days after service. (Id. at 13.)
On February 1, 2018, Plaintiff filed the instant “Consent to Findings and Dismissal.”

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(ECF No. 14.) Plaintiff does not explain his failure to file a second amended complaint in

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response to the Court’s December 6, 2017, order. Rather, Plaintiff states that he consents to the

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recommendations to dismiss this action, because after adding all of the true facts to the complaint,

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the Court has stated that he has still failed to state a claim. Plaintiff states that he is therefore

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“forced to consent to the dismissal of this action.” (Id.)

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Based on this filing, it is unclear to the Court whether Plaintiff intends to voluntarily
dismiss this action, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i),

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or whether Plaintiff merely has no objection to the Court’s recommendation that this action be

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dismissed, with prejudice, due to Plaintiff’s failure to state a claim, failure to obey a Court order,

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and failure to prosecute.

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Accordingly, within fourteen (14) days from the date of service of this order, Plaintiff

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shall clarify, in writing, whether he intends to voluntarily dismiss this action, pursuant to Rule 41,

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or whether he merely has no objection to the Court’s recommendation that this action be

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dismissed, with prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 5, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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