Lena v. Foulk et al

Filing 38

ORDER signed by District Judge Kimberly J. Mueller on 2/12/2018 ORDERING that this action is DISMISSED. CASE CLOSED (Washington, S)

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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 MICHAEL ANGELO LENA, 12 13 14 15 No. 2:16-cv-0152 KJM CKD P Plaintiff, v. ORDER FRANK FOULK, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 18 42 U.S.C. § 1983. By order filed September 26, 2017, plaintiff was granted thirty days within 19 which to file an amended complaint and was cautioned that failure to file an amended complaint 20 within that time would result in dismissal. ECF No. 28. On October 18, 2017, plaintiff filed a 21 response to the court’s September 26, 2017 order in which he contended he had been transferred 22 to a new prison and denied access to his legal materials. ECF No. 32. By order filed December 23 1, 2017, the court requested from the Office of the California Attorney General (OAG) an 24 informal response to plaintiff’s October 18, 2017 response. ECF No. 22. 25 The OAG has filed a response. ECF No. 37. The OAG presents evidence that plaintiff 26 has had access to his legal materials since October 27, 2017. ECF No. 37-1 at 2. Specifically, the 27 OAG has presented evidence that plaintiff received four boxes of personal property and five 28 boxes of legal material on October 27, 2017, two additional boxes of legal material on December 1 1 6, 2017, and that plaintiff has the ability to request access to his remaining 18 boxes of legal 2 material by requesting to exchange a box in his possession for a box held by the Receiving and 3 Release office. Id. 4 Plaintiff was cautioned that this action would be dismissed if he did not timely file an 5 amended complaint. ECF No. 28 at 4. More than thirty days has passed since plaintiff has had 6 access to his legal materials and he has not filed an amended complaint. Moreover, the record 7 reflects plaintiff has been given ample opportunity to amend his complaint. See, e.g., ECF Nos. 8 22, 24, 26, 28. 9 Accordingly, good cause appearing, IT IS HEREBY ORDERED that this action is 10 dismissed. See Fed. R. Civ. P. 41(b). 11 DATED: February 12, 2018. 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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