(PC) Whitaker v. Crane, et al., No. 2:2013cv00505 - Document 25 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/2/2014 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections 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 JOSEPH WHITAKER, 12 13 14 15 No. 2:13-cv-00505 KJM DAD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS CRANE, et al., Defendants. 16 17 On August 4, 2014, this court issued an order in this action denying plaintiff’s motion for 18 a temporary restraining order, and dismissing plaintiff’s Second Amended Complaint with leave 19 to amend. (See ECF No. 23.) At that time plaintiff was granted thirty days to file a Third 20 Amended Complaint together with a new application to proceed in forma pauperis that included a 21 certified copy of his prison trust account statement for the preceding six-month period. (Id.) 22 Plaintiff was informed then that “[f]ailure . . . to timely file a new and properly completed 23 application to proceed in forma pauperis and a Third Amended Complaint in accordance with this 24 order will result in a recommendation that this action be dismissed.” (Id. at 8.) 25 The thirty-day period has long since expired, and plaintiff has not responded to the court’s 26 order. Plaintiff did file an untimely request, on October 24, 2014, for a blank USM-285 form and 27 summons to allow him to serve a purported defendant not named in his Second Amended 28 Complaint. (See ECF No. 24.) However, plaintiff’s untimely request was not responsive to the 1 court’s August 4, 2014 order. Moreover, there is no operative pleading before the court, plaintiff 2 has failed to file a third amended complaint in the time provided for him to do so and has still not 3 filed a proper application to proceed in forma pauperis (see ECF No. 15). 4 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 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, plaintiff may file written objections 9 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 11 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 12 (9th Cir. 1991).1 13 Dated: December 2, 2014 14 15 16 DAD:4 whit0505.fifp.tac 17 18 19 20 21 22 23 24 25 26 27 28 1 If plaintiff wishes to proceed with this action he may submit with his objections to these findings and recommendations a proper, fully supported application to proceed in forma pauperis along with a proposed third amended complaint. If appropriate the undersigned would then vacate these findings and recommendations. 2
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