Penton v. Hubard et al

Filing 71

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/26/15 ORDERING that defendants' request for clarification of the 1/09/15 order 70 is denied. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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No. 2:11-cv-0518 GEB KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

S. NUNEZ,
Defendants.

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By order filed August 26, 2014, plaintiff was ordered to show cause, within thirty days,

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why this action should not be dismissed for his failure to serve remaining defendant Nunez

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pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 61.) On November 10,

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2014, plaintiff filed a response to the order to show cause, and a request for equitable

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reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No. 65.)

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However, rather than respond to the order to show cause as to defendant Nunez, plaintiff sought

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equitable relief, requesting that the court allow him to amend to again pursue claims against

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Mailroom Supervisor Johnson, who was previously dismissed, allegedly based on new evidence.

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On November 25, 2014, plaintiff was granted thirty days in which to file a proposed third

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amended complaint, with briefing pursuant to Local Rule 230(l). Subsequently, defendants filed

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an opposition to plaintiff’s request for reconsideration, and plaintiff filed a request for extension

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of time to submit the proposed third amended complaint. On January 9, 2015, plaintiff was
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granted an additional thirty days. Such thirty day period has now expired, and plaintiff has not

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submitted the proposed third amended complaint pursuant to the November 25, 2014 order,

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shown cause as to defendant Nunez, or otherwise responded to the court’s order.

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In light of the above, IT IS HEREBY ORDERED that defendants’ request for clarification
of the January 9, 2015 order (ECF No. 70) is denied; and
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See
Fed. R. Civ. P. 4(m); Local Rule 110; Fed. Rule Civ. P. 41(b).

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: February 26, 2015

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/pent0518.fsc

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