Holland v. Palubicki

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/13/2017 RECOMMENDING this action be dismissed without prejudice for failure to state a claim and failure to prosecute. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KENNETH E. HOLLAND,

12

Plaintiff,

13

v.

14

No. 2:15-cv-2198-JAM-EFB P

E. PALUBICKI,

15

FINDINGS AND RECOMMENDATIONS

Defendant.

16
17

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

18

U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

19

U.S.C. § 636(b)(1).
On March 22, 2017, the court screened plaintiff’s complaint pursuant to 28 U.S.C.

20
21

§ 1915A. The court dismissed plaintiff’s complaint, explained the deficiencies therein and

22

granted plaintiff thirty days in which file an amended complaint to cure the deficiencies. ECF

23

No. 9. The order warned plaintiff that failure to comply would result a recommendation that this

24

action be dismissed for failure to state a claim. By an order filed April 21, 2017, plaintiff was

25

granted an additional thirty days in which to file his amended complaint. ECF No. 13. The time

26

for acting has passed and plaintiff has not filed an amended complaint, or otherwise responded to

27

the court’s order.

28

/////
1

1

A party’s failure to comply with any order or with the Local Rules “may be grounds for

2

imposition by the Court of any and all sanctions authorized by statute or Rule or within the

3

inherent power of the Court.” E.D. Cal. Local Rule 110. The court may dismiss an action with or

4

without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v.

5

Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in

6

dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended

7

complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,

8

1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

9

regarding notice of change of address affirmed).

10

Accordingly, it is hereby RECOMMENDED that this action be DISMISSED without

11

prejudice for failure to state a claim and failure to prosecute. Fed. R. Civ. P. 41(b); E. D. Cal.

12

Local Rule 110; 28 U.S.C. 1915A.

13

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

14

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

15

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

16

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

17

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

18

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

19

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

20

appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

21

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

22

Dated: June 13, 2017.

23
24
25
26
27
28
2