Smith v. Siskiyou County Jail et al.

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/1/2018 RECOMMENDING this action be dismissed with prejudice, for failure to state a claim upon which relief could be granted, and the Clerk be directed to enter judgment and close the case. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ANTHONY SMITH, 12 Plaintiff, 13 14 No. 2:15-cv-2534-TLN-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS SISKIYOU COUNTY JAIL, et al., 15 Defendants. 16 17 On October 13, 2017, the court dismissed plaintiff’s amended complaint for failure to 18 state a claim, with leave to amend.1 ECF No. 17. Rather than amend his complaint he filed a 19 “Motion for Judgment,” pursuant to Rule 58(d) of the Federal Rules of Civil Procedure and stated 20 that he would “not be amending his complaint any further.” ECF No. 18. That filing was 21 erroneously construed as a notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii) and the 22 case was closed. ECF No. 19. On appeal, the U.S. Court of Appeals for the Ninth Circuit 23 vacated the voluntary dismissal order and remanded to this court “to permit the district judge to 24 enter a final judgment pursuant to appellant’s November 13, 2017 motion for judgment.” ECF 25 No. 23. 26 27 28 1 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 1 1 In light of the above, IT IS HEREBY RECOMMENDED that this action be dismissed, 2 with prejudice, for failure to state a claim upon which relief could be granted, and the Clerk be 3 directed to enter judgment and close the case. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 objections shall be served and filed within fourteen days after service of the objections. The 10 parties are advised that failure to file objections within the specified time may waive the right to 11 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 12 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: May 1, 2018. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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