Lynn v. California Department of Corrections and Rehabilitation and Employees

Filing 31

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/3/16 ORDERING that plaintiff's requests for appointment of counsel (ECF Nos. 28 & 29 ) are DENIED. It is RECOMMENDED that this action be dismissed without prejudice for lack of prosecution. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALVIN S. LYNN,

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No. 2:14-cv-2690 WBS KJN P

Plaintiff,
v.

ORDER and FINDINGS &
RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION AND EMPLOYEES,
et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. §

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1983. By order dated December 18, 2015, plaintiff was granted thirty days to file an amended

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complaint, and was cautioned that failure to file an amended complaint would result in a

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recommendation that this action be dismissed. (ECF No. 27). Plaintiff thereafter filed two

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motions for appointment of counsel, but did not file an amended complaint.

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On June 8, 2016, plaintiff was granted an additional thirty days to file his amended

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complaint. (ECF No. 30.) Plaintiff was advised that the court would not rule on plaintiff’s

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requests for counsel until after he filed his amended complaint. (Id. at 3-4.) Plaintiff was again

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warned that failure to file an amended complaint within thirty days would result in a

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recommendation that this action be dismissed. More than forty-five days from that date have now
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passed, and plaintiff has not filed an amended complaint, or otherwise responded to the court’s

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order.

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Because the undersigned recommends that this action be dismissed for lack of prosecution

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based on plaintiff’s failure to file an amended complaint, plaintiff’s requests for counsel will be

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denied as moot.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s requests for appointment of
counsel (ECF Nos. 28 & 29) are denied.
IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice for
lack of prosecution. See Local Rule 110; Fed. R. 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, 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 response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that 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: August 3, 2016

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/lynn2690.fta

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