Celentano v. American with Disabilities Office et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/27/12 RECOMMENDING that this action be dismissed without prejudice, and that the Clerk be directed to close this case. Referred to Judge John A. Mendez; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGIA A. CELENTANO,
Plaintiff,

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No. 2:11-cv-3456-JAM-EFB PS

vs.
AMERICANS WITH DISABILITIES
OFFICE, SACRAMENTO SUPERIOR
COURT; SACRAMENTO SUPERIOR
COURT; JUDICIAL COUNCIL OF
CALIFORNIA; and DOES 1-10,
Defendants.

FINDINGS AND RECOMMENDATIONS
/

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This case, in which plaintiff is proceeding pro se and in forma pauperis, is before the

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undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C.

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§ 636(b)(1). On June 11, 2012, the undersigned dismissed plaintiff’s first amended complaint

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pursuant to 28 U.S.C. § 1915(e)(2), but provided plaintiff thirty days to file a second amended

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complaint. Dckt. No. 10. The order explained that “[i]f plaintiff fails to file a second amended

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complaint, the undersigned may recommend that this case be dismissed for failure to prosecute

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and/or for failure to comply with court orders. See Fed. R. Civ. P. 41(b); see also Local Rule

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110.” Id. at 6. Because the deadline passed and plaintiff failed to file a second amended

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complaint, on July 17, 2012, the undersigned issued findings and recommendations,
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recommending that the action be dismissed without prejudice for failure to prosecute. Dckt. No.

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11.

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On August 3, 2012, plaintiff filed objections to the findings and recommendations. Dckt.

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No. 12. Although the objections did not respond to the findings and recommendations, and

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instead appeared to be challenging the analysis stated in this court’s June 11, 2012 order

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dismissing plaintiff’s first amended complaint, Dckt. No. 10, because plaintiff was attempting to

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prosecute this action, on August 22, 2012, the undersigned issued an order vacating the

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recommendation that the action be dismissed for failure to prosecute and granting plaintiff

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additional time to file an amended complaint.1 Dckt. No. 13. Specifically, the order provided

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that plaintiff had thirty days to file a second amended complaint. Id. at 2. Plaintiff was

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admonished that if she failed to timely file a second amended complaint, the undersigned would

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once again recommend that this case be dismissed for failure to prosecute and/or for failure to

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comply with court orders. See Fed. R. Civ. P. 41(b); see also Local Rule 110.
The deadline has now passed and plaintiff has once again failed to timely file a second

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amended complaint. Accordingly, IT IS HEREBY RECOMMENDED that this action be

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dismissed without prejudice, and that the Clerk be directed to close this case. Fed. R. Civ. P.

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41(b); L.R. 110.

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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, 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.” Failure to file objections

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However, the June 11, 2012 order dismissing plaintiff’s first amended complaint was
not vacated.
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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 27, 2012.

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