Atlas v. Fox et al.

Filing 13

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/16/2017 ORDERING the Clerk to randomly assign a US District Judge to this action and RECOMMENDING this action be dismissed without prejudice for failure to prosecute. Assigned and referred to Judge Morrison C. England, Jr.; 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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ALBERT ATLAS,

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No. 2:17-cv-0286 AC P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

ROBERT FOX, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983,

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filed a complaint in this court in February 2017. ECF No. 1. On June 20, 2017, the court

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dismissed plaintiff’s claim but afforded him thirty days leave to amend. ECF No. 5. On July 28,

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2017, the court issued an order noting that plaintiff had neither filed an amended complaint, nor

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requested an extension of time to do so. ECF No. 8. As a result, the court ordered that plaintiff

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would be given a final thirty-day extension of time to file an amended complaint. Id. At that

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time, the court provided notice to plaintiff that if he had not complied at the end of thirty days, it

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would dismiss his complaint without prejudice. Id.

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On August 10, 2017, plaintiff filed objections, stating that he had not received the court’s

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initial order allowing him to amend his complaint. ECF No. 9. In response, on August 15, 2017,

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the court ordered that a copy of its initial June 20, 2017 order be sent to plaintiff and gave

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plaintiff an additional thirty days to submit an amended complaint in accord with it. ECF No. 10.
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At that time, plaintiff was also informed that if necessary, he could request a reasonable extension

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of time to file beyond the thirty days. Id.

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On September 28, 2017, plaintiff filed a motion for extension of time to file an amended

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complaint listing limited access to the law library and the fact that he had yet to receive

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documents related to his case as reasons in support of the request. ECF No. 11. The court

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granted the motion on October 3, 2017, and gave plaintiff an additional thirty days to file. ECF

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No. 12. More than forty days have passed since plaintiff was granted an extension of time, and

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plaintiff has not filed an amended complaint or otherwise responded to the court’s order.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice for

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failure to prosecute. See Fed. R. Civ. P. 41(b); see Local Rule 110 (“[f]ailure of counsel or a

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party to comply with . . . any order of the Court may be grounds for the imposition by the Court

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of any and all sanctions . . . within the inherent power of the Court.”); see also Thompson v.

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Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (stating district courts have

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inherent power to control their dockets, and in so doing, may impose sanctions, including default

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or dismissal).

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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

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DATED: November 16, 2017.

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