Langston v. California Department of Corrections and Rehabilitation et al

Filing 6

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/21/2016 ORDERING the Clerk to randomly assign a District Judge to this action; AND RECOMMENDING this action be dismissed without prejudice for failure to prosecute and failure to comply with this court's orders. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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Plaintiff,

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No. 2:16-cv-2255 DB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. On September 28, 2016, the court gave plaintiff thirty days to file an amended complaint,

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either in this proceeding or in a new proceeding in the Fresno Division of this court, and an

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application to proceed in forma pauperis or the filing fee. (ECF No. 3.) On October 28, 2016,

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plaintiff moved for an extension of time to “file [a] grievance with prison administration.” (ECF

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No. 4.) Plaintiff was advised that the court cannot grant an extension of time to file a grievance

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with the prison. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Plaintiff was further

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advised that he must exhaust his administrative remedies through the grievance and appeal

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procedures before he may seek relief in this court. See McKinney v. Carey, 311 F.3d 1198, 1199

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(9th Cir. 2002).

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The court liberally construed plaintiff’s motion for an extension of time as also seeking an

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extension of the deadlines set out in the court’s September 28, 2016 order. Accordingly, on

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November 9, 2016, the court ordered that plaintiff’s motion for an extension of time (ECF No. 4),

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construed as an extension of deadlines set by this court, be granted. (ECF No. 5.) Thus, plaintiff

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was ordered to, within thirty days of the November 9, 2016 order, file an amended complaint, as

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explained in the September 28 order, and a motion to proceed in forma pauperis or pay the filing

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fee. (Id.) Plaintiff was warned that his failure to meet this deadline would result in a

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recommendation that his case be dismissed without prejudice. (Id.)

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More than thirty days have now passed and plaintiff has not filed an amended complaint,

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as explained in the September 28 order, and a motion to proceed in forma pauperis or pay the

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filing fee. Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1992); see also Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
District Judge to this action; and

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice for
failure to prosecute and failure to comply with this court’s orders.

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

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections.

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Plaintiff is advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: December 21, 2016

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / lang2255.dismiss

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