Linder v. California Department of Corrections and Rehabilitation
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/7/2018 ORDERING the Clerk to randomly assign a US District Judge to this action and RECOMMENDING this action be dismissed without prejudice. 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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DUANE PEYTON LINDER,
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No. 2:17-cv-0943 EFB P
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
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Defendant.
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Plaintiff, a state prisoner, proceeds without counsel in an action brought under 42 U.S.C.
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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
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§ 636(b)(1).
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On March 1, 2018, the court screened plaintiff’s complaint pursuant to 28 U.S.C.
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§ 1915A. The court dismissed the complaint, explained the deficiencies therein and granted
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plaintiff thirty days in which file an amended complaint to cure the deficiencies. ECF No. 11.
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The order warned plaintiff that failure to comply would result a recommendation that this action
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be dismissed. The time for acting passed and plaintiff did not file an amended complaint, or
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otherwise respond to the court’s order.
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On March 8, 2018, plaintiff filed a request for appointment of counsel, which the court
denied, and also filed a statement regarding his medical condition. ECF Nos. 14, 15, 16. On
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April 17, 2018, in an abundance of caution, the court granted plaintiff another 30 day extension of
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time to file his amended complaint. ECF No. 17. The time for acting has passed and plaintiff has
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not filed an amended complaint.
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A party’s failure to comply with any order or with the Local Rules “may be grounds for
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imposition by the Court of any and all sanctions authorized by statute or Rule or within the
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inherent power of the Court.” E.D. Cal. L.R. 110. The court may dismiss an action with or
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without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v.
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Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in
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dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended
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complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,
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1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule
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regarding notice of change of address affirmed).
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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.
Further, it is hereby RECOMMENDED that this action be DISMISSED without
prejudice. Fed. R. Civ. P. 41(b); E. D. Cal. L.R. 110.
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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. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: June 7, 2018.
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