(PC) Fletcher v. Swarthout, et al., No. 2:2014cv00567 - Document 26 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/29/2016 ORDERING the Clerk to assign a district judge to this case. IT IS RECOMMENDED that, for the reasons set forth in the court's 10/20/2016 order, this case be dismissed with prejudice. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK FLETCHER, 12 13 No. 2:14-cv-0567 DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GARY SWARTHOUT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983. In an order dated October 20, 2016, the undersigned granted 19 defendants’ motion to dismiss and gave plaintiff twenty-one days to file a third amended 20 complaint. (ECF No. 24.) Plaintiff was advised that if he chose not to file an amended 21 complaint, the court would recommend that this case be dismissed with prejudice. (Id. at 11.) 22 On November 14, 2016, plaintiff filed a document entitled “Waiver of reply.” (ECF No. 23 25.) Plaintiff states that he submits “a motion for waiver of reply, in the interest of justice.” The 24 undersigned construes plaintiff’s filing as a decision not to proceed with this action. 25 26 27 28 Accordingly, and for the reasons set forth in the court’s October 20, 2016 order, the undersigned HEREBY RECOMMENDS that this case be dismissed with prejudice. Because all parties have not filed consents to magistrate judge jurisdiction, the Clerk of the Court is ORDERED to assign a district judge to this case. 1 1 These findings and recommendations will be submitted to the United States District Judge 2 to be assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 3 days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. The document should be captioned 5 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 6 objections shall be filed and served within seven days after service of the objections. The parties 7 are advised that failure to file objections within the specified time may result in waiver of the 8 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 Dated: November 29, 2016 10 11 12 13 14 15 16 17 DLB:9 DLB1/prisoner-civil rights/flet0567.fr 18 19 20 21 22 23 24 25 26 27 28 2
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