Spencer v. Virga et al

Filing 27

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/26/15 ORDERING the clerk randomly assign a District Court judge to this case. U.S. District Court Judge William B. Shubb randomnly assigned to this case. Also, RECOMMENDING that this action be dismissed without prejudice for failure to prosecute. Referred to Judge William B. Shubb. Objections due within 21 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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THURMAN LEROY SPENCER,

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No. 2:13-cv-01626 AC P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

TIMOTHY VIRGA, et al.,
Defendants.

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

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action pursuant to 42 U.S.C. § 1983. By order of June 27, 2014 plaintiff’s first amended

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complaint was dismissed with leave to file a second amended complaint within thirty days. ECF

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No. 19. Plaintiff did not file an amended complaint, but he submitted a letter indicating that he no

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longer had access to his 10 boxes of legal property and books. ECF No. 22. Construing the letter

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as a request for an extension of time to file his amended complaint, the court granted plaintiff an

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extension of time to September 12, 2014 to file his second amended complaint.

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On October 6, 2014, three weeks after the amended complaint was due, plaintiff served a

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document entitled “Motion Plaintiff Denied Property To Answer Court.” ECF No. 26. This ten-

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page document again offers reasons plaintiff says he could not file the amended complaint,

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including the absence of his legal documents, his false imprisonment, and the denial of his rights.

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However, there is no explanation for why plaintiff could file his lengthy motion, but could not file
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the second amended complaint. The action will therefore be dismissed for failure to prosecute.

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See Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a district court
judge to this case.
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice for
failure to prosecute.
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 twenty-one 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 and

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Recommendations. Failure to file objections within the specified time may waive the right to

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

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DATED: January 26, 2015

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