Nelson v. San Joaquin County, et al.

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/3/2017 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN NELSON,

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No. 2:17-cv-00819 TLN CKD (PS)

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

SAN JOAQUIN COUNTY, et al.,

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Defendants.

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By order filed June 26, 2017, defendant San Joaquin County’s motion to dismiss was

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granted and plaintiff’s complaint was dismissed for failure to state a claim. Plaintiff was granted

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thirty days to file an amended complaint. The thirty day period has now expired, and plaintiff has

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not filed a First Amended Complaint.

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Instead, plaintiff has appealed a minute order essentially ruling that, because plaintiff was

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already given leave to amend, there was no need to grant his motion to amend. (ECF No. 16.) In

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plaintiff’s notice of appeal, he includes what may be construed as an amended complaint. (Id.)

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However, this pleading does not cure the defects of the previous complaint as discussed in the

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June 26, 2017 order. Thus, dismissal of this action is warranted as to defendant San Joaquin

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County.

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As to individual defendants Moore and Mitchell, it does not appear these parties were

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timely served. See ECF No. 3 (April 19, 2017 order requiring plaintiff to complete service of
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process on named defendants within 90 days per Fed. R. Civ. P. 4(m)). Thus this action should

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be dismissed as to all defendants.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 3, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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