Lena v. Foulk, et al.

Filing 28

ORDER signed by District Judge Troy L. Nunley on 12/26/16 ORDERING that Plaintiff's objections filed 6/10/16 and 6/20/16 22 , 23 are DENIED; and Within thirty (30) days of the date of this order, Plaintiff must file an amended complaint that complies with the 5/11/16, order if he wishes to proceed with this action. Plaintiff is warned that his failure to file a proper amended complaint in a timely manner will result in dismissal of this action.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANGELO LENA,

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Plaintiff,

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No. 2:15-cv-2276 TLN DB P

v.

ORDER

FRED FOULK, et al.,

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Defendants.

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

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action under 42 U.S.C. § 1983. Before the Court are Plaintiff’s “objections” to the Magistrate

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Judge’s order issued May 11, 2016. (ECF Nos. 22, 23.1) Plaintiff states therein that he objects to

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the Magistrate Judge’s dismissal without prejudice of his complaint.
Plaintiff filed his original complaint on November 2, 2015. (ECF No. 1.) On May 11,

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2016, the previously-assigned Magistrate Judge dismissed Plaintiff’s complaint and gave him

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thirty days to file an amended complaint. (ECF No. 17 at 8.) The Magistrate Judge warned

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Plaintiff that his failure to file an amended complaint in accordance with the order would result in

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a recommendation that his action be dismissed without prejudice.

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Plaintiff filed “objections” on June 10, 2016 and June 20, 2016. The filings appear to be
identical.
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Under Federal Rule of Civil Procedure 72(a), a party may object to a magistrate judge’s

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ruling on a pretrial matter within fourteen days of service of the magistrate judge’s order. The

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district court may set aside all or part of that order that is clearly erroneous or contrary to law.

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See also E.D. Cal. R. 303. Because Plaintiff filed his objections more than fourteen days after

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service of the Magistrate Judge’s order, they are untimely. In addition, the Court finds the

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Magistrate Judge’s May 11, 2016 order is neither clearly erroneous nor contrary to law.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s objections filed June 10 and June 20, 2016 (ECF Nos. 22 and 23) are

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denied; and
2. Within thirty (30) days of the date of this order, Plaintiff must file an amended

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complaint that complies with the May 11, 2016, order if he wishes to proceed with this

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action. Plaintiff is warned that his failure to file a proper amended complaint in a

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timely manner will result in dismissal of this action.

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Dated: December 26, 2016

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Troy L. Nunley
United States District Judge

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