Davis v. Schroeder et al

Filing 28

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/6/12 ORDERING that Plaintiffs motion to intervene 25 is denied; Plaintiffs motion for leave to file an amended complaint 26 is denied as moot; it is RECOMMENDED that this action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES L. DAVIS,

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Plaintiff,

No. 2:10-cv-2972 MCE CKD P

vs.
SCHROEDER, et al.,

ORDER &

Defendants.

FINDINGS AND RECOMMENDATIONS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on November 4,

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2010. (Dkt. No. 1.) On April 13, 2012, the undersigned granted plaintiff leave to file a third

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amended complaint “not longer than 20 pages.” (Dkt. No. 16 at 4.) After plaintiff disregarded

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this page limit, the undersigned on July 30, 2012 granted plaintiff leave to file a fourth amended

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complaint “not longer than 20 pages[.] . . . Failure to file an amended complaint, or to adhere to

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the page limit, will result in a recommendation that this action be dismissed.” (Dkt. No. 24 at 2.)

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On December 5, 2012, the district court affirmed this court’s July 30, 2012 order. (Dkt. No. 27.)

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Despite the clear language of the July 30, 2012 order, plaintiff has submitted a
proposed amended complaint over sixty pages in length. (Dkt. No. 26, Ex. I.) Accordingly, the
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undersigned will recommend that this action be dismissed pursuant to Rule 41(b) of the Federal

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Rules of Civil Procedure. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County

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Justice Center, 492 F.3d 1158, 1161, n.2 (10th Cir. 2007) (“Although the language of Rule 41(b)

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requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit

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courts [as here] to dismiss actions sua sponte for a plaintiff’s failure to . . . comply with the rules

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of civil procedure or court’s orders.”) (internal citation omitted).

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Plaintiff currently has two motions pending. On August 30, 2012, plaintiff filed a

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motion to intervene (Dkt. No. 25), which the court construes as a motion for disqualification of

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Magistrate Judge Delaney. The court will deny this motion for the reasons set forth in its May 22,

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2012 order, affirmed by the district court on December 5, 2012. (Dkt. Nos. 20, 27.)

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On September 5, 2012, plaintiff sought leave to file an amended complaint,

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attached as Exhibit I. (Dkt. No. 26.) The court will deny this motion as moot in light of its July

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30, 2012 order granting leave to file a fourth amended complaint, not longer than 20 pages. As set

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forth above, plaintiff has disregarded that order and this action should be dismissed pursuant to

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Rule 41(b).

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion to intervene (Dkt. No. 25) is denied;

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2. Plaintiff’s motion for leave to file an amended complaint (Dkt. No. 26) is denied

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as moot.
IT IS HEREBY RECOMMENDED THAT this action be dismissed pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure.
These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: December 6, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi2972.41b

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