(PC) Jimenez v. Diaz et al, No. 1:2019cv00773 - Document 12 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 9 FINDINGS and RECOMMENDATIONS AND 10 FINDINGS and RECOMMENDATIONS; ORDER DENYING Motion for a Temporary Restraining Order and Preliminary Injunction; ORDER DISMISSING this action due to plaintiffs failure to state a cognizable claim, failure to comply with a court order, and failure to prosecute, signed by District Judge Dale A. Drozd on 4/18/2020. CASE CLOSED(Martin-Gill, S)

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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 SALVADOR JIMENEZ, 12 Plaintiff, 13 v. 14 RALPH DIAZ, 15 No. 1:19-cv-00773-DAD-EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. Nos. 9, 10) Defendants. 16 17 Plaintiff Salvador Jimenez is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 3, 2019, plaintiff filed his complaint in this action alleging that defendants were 21 acting with deliberate indifference to conditions posing a substantial risk of serious harm to 22 plaintiff in violation of the Eighth Amendment. (Doc. No. 1.) Alongside the complaint, plaintiff 23 filed motions for a temporary restraining order and preliminary injunction. (Id. at 7–15.) 24 On October 28, 2019, the assigned magistrate judge screened plaintiff’s complaint and 25 concluded that it failed to state any cognizable claims. (Doc. No. 8.) The screening order 26 contained notice to plaintiff that he could either file an amended complaint within thirty (30) days 27 from the date of service to attempt to cure the noted deficiencies or notify the court of his intent to 28 stand on his complaint. (Id. at 8.) The magistrate judge also issued findings and 1 1 recommendations on October 28, 2019, recommending that plaintiff’s motion for a temporary 2 restraining order and preliminary injunction be denied. (Doc. No. 9.) Those findings and 3 recommendations contained notice that any objections thereto were to be filed within twenty-one 4 (21) days after service. (Id. at 6–7.) Plaintiff did not respond in any way to the screening order. 5 Accordingly, on January 16, 2020, the magistrate judge issued findings and 6 recommendations recommending dismissal of this action due to plaintiff’s failure to state a claim 7 upon which relief can be granted, failure to comply with a court order, and failure to prosecute. 8 (Doc. No. 10.) The findings and recommendations contained notice that any objections thereto 9 were to be filed within twenty-one (21) days after service. (Id. at 3–4.) To date, plaintiff has 10 neither filed an amended complaint, notified the court of his intent to stand on his complaint, nor 11 submitted objections to either set of findings and recommendations.1 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 13 court has conducted a de novo review of the case. Having carefully reviewed the entire file, the 14 court finds the findings and recommendations to be supported by the record and proper analysis. 15 Accordingly: 16 1. The findings and recommendations issued on October 28, 2019 (Doc. No. 9) are 17 18 adopted in full; ///// 19 1 20 21 22 23 24 25 The October 28, 2019 screening order and findings and recommendations addressing plaintiff’s request for preliminary relief were returned to the court by the U.S. Postal Service as “Undeliverable, out to court,” while the January 16, 2020 findings and recommendations were returned to the court as “Undeliverable, Out to Court/Paroled.” Local Rule 183(b) provides that [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 26 27 28 The court notes that it has been over sixty-three days since the screening order and both findings and recommendations were returned to the court as undeliverable, and plaintiff has not notified the court of a change of his address of record. 2 1 2. Plaintiff’s motion for a temporary restraining order and preliminary injunction (Doc. 2 3 No. 1) is denied; 3. The findings and recommendations issued on January 16, 2020 (Doc No. 10) are 4 5 adopted; 4. This action is dismissed due to plaintiff’s failure to state a cognizable claim, failure to 6 7 8 9 comply with a court order, and failure to prosecute; and 5. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: April 18, 2020 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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