Green v. Walker et al

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 04/13/10 RECOMMENDING that the 1 Case Transferred In, be dismissed without prejudice. Objections to F&R due within 21 days. (Williams, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action is referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and E.D. Cal. L.R. ("Local Rule") 302. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA LONZELL GREEN, Plaintiff, vs. JAMES WALKER, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case was reassigned to the undersigned on February 9, 2010.1 This action, filed October 22, 2007, was transferred to this court from the United States District Court for the Northern District of California on November 19, 2007. (Dkt. No. 1.) On January 9, 2008, this court recommended dismissal of this action based on plaintiff's failure to comply with the court's order directing him to file an in forma pauperis affidavit or pay the filing fee. (Dkt. No. 5.) In response to objections timely filed by plaintiff, the court accorded plaintiff additional time within which to file his in forma pauperis application, which he filed on ORDER and FINDINGS AND RECOMMENDATIONS No. 2:07-cv-02487-KJN P

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February 26, 2008. (Dkt. Nos. 6, 7, 8.) The court thereafter vacated its findings and recommendations, granted plaintiff in forma pauperis status and, in a detailed screening order, dismissed the complaint with leave to file an amended complaint in conformance with standard pleading requirements. (Dkt. No. 9.) Following an extension of time, plaintiff filed an amended complaint. (Dkt. Nos. 12, 14.) However, pursuant to a second careful screening order filed February 26, 2009, the court dismissed plaintiff's amended complaint with leave to file, within thirty days, a second amended complaint. (Dkt. No. 17.) This deadline was twice extended, on March 27, 2009 (Dkt. No. 19), and on May 11, 2009 (Dkt. No. 21). Since plaintiff did not file a second amended complaint within the extended period of time, the court filed findings and recommendations again recommending dismissal of this action. (Dkt. No. 22.) Plaintiff thereafter objected, and the court vacated its findings and recommendations and accorded plaintiff a "final" thirty days within which to file a second amended complaint. (Dkt. Nos. 23, 24). Plaintiff again failed to file a second amended complaint or otherwise communicate with the court, and thus the court again filed findings and recommendations recommending dismissal of this action. (Dkt. No. 25.) In response to objections timely filed by plaintiff, the court vacated these findings and recommendations and again accorded plaintiff another thirty days within which to file a second amended complaint. (Dkt. Nos. 26, 27.) The court emphasized in this January 29, 2010 order that this was the "final thirty day extension of time to file a second amended complaint," that "no further extensions of time will be granted for this purpose," and that "[f]ailure to comply with the court's order will result in a recommendation for dismissal of this action." (Dkt. No. 27, at 1-2.) The extended period of time for filing a second amended complaint (totaling more than a year) expired on March 1, 2010, and plaintiff has neither filed a further pleading nor otherwise communicated with the court. The court will therefore recommend dismissal of this action. 2

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a district judge to this case. Further, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 13, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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