(PC) Padilla v. Rooter, et al, No. 2:2010cv00239 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/27/2010 RECOMMENDING that this action be dismissed w/out prejudice. Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 14 days. (Yin, K)
Download PDF
(PC) Padilla v. Rooter, et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FIDEL PADILLA, Plaintiff, 11 12 vs. 13 No. CIV S-10-0239 FCD EFB P ROOTER, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. On July 20, 2010, the court found that the complaint stated cognizable First 18 Amendment claims against defendants Perez, Rooter, Sixtos, Aguilar, Montano, and Garrete for 19 their alleged interference with plaintiff’s outgoing mail. The court further found that plaintiff 20 had failed to state cognizable supervisorial liability, access to the courts, retaliation, conditions 21 of confinement and medical care claims, and dismissed those claims with leave to amend. The 22 court gave plaintiff 30 days to submit materials for service of process on defendants Perez, 23 Rooter, Sixtos, Aguilar, Montano and Garrete, or, alternatively, 30 days to file an amended 24 complaint to attempt to state cognizable supervisorial liability, access to the courts, retaliation, 25 conditions of confinement and medical care claims. 26 //// 1 Dockets.Justia.com 1 The times for acting passed and plaintiff did not submit the materials necessary to serve 2 process on defendants, did not file an amended complaint or otherwise respond to the court’s 3 order.1 4 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); Local Rule 110. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: September 27, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Although it appears from the file that plaintiff’s copy of the order was returned, plaintiff was properly served. It is the plaintiff’s responsibility to keep the court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective. The court notes, however, that on March 29, 2010, plaintiff filed a notice of change of address. Plaintiff provided a new address, which is properly reflected on the docket, but plaintiff also listed a second address and requested that mail be sent to that address as well. Dckt. No. 14. Therefore, the court directs the Clerk of the Court to serve these findings and recommendations at the second address for plaintiff (Fidel Padilla, 4435 First Street #405, Livermore, CA, 94551), in addition to the address reflected on the docket. 2