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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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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No. 2:16-cv-0152 KJM CKD P

Plaintiff,
v.

ORDER

FRANK FOULK, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under

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42 U.S.C. § 1983. By order filed September 26, 2017, plaintiff was granted thirty days within

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which to file an amended complaint and was cautioned that failure to file an amended complaint

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within that time would result in dismissal. ECF No. 28. On October 18, 2017, plaintiff filed a

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response to the court’s September 26, 2017 order in which he contended he had been transferred

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to a new prison and denied access to his legal materials. ECF No. 32. By order filed December

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1, 2017, the court requested from the Office of the California Attorney General (OAG) an

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informal response to plaintiff’s October 18, 2017 response. ECF No. 22.

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The OAG has filed a response. ECF No. 37. The OAG presents evidence that plaintiff

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has had access to his legal materials since October 27, 2017. ECF No. 37-1 at 2. Specifically, the

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OAG has presented evidence that plaintiff received four boxes of personal property and five

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boxes of legal material on October 27, 2017, two additional boxes of legal material on December
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6, 2017, and that plaintiff has the ability to request access to his remaining 18 boxes of legal

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material by requesting to exchange a box in his possession for a box held by the Receiving and

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Release office. Id.

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Plaintiff was cautioned that this action would be dismissed if he did not timely file an

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amended complaint. ECF No. 28 at 4. More than thirty days has passed since plaintiff has had

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access to his legal materials and he has not filed an amended complaint. Moreover, the record

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reflects plaintiff has been given ample opportunity to amend his complaint. See, e.g., ECF Nos.

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22, 24, 26, 28.

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Accordingly, good cause appearing, IT IS HEREBY ORDERED that this action is

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dismissed. See Fed. R. Civ. P. 41(b).

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DATED: February 12, 2018.

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UNITED STATES DISTRICT JUDGE

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