(PC) Anderson v. McIntrny, et al., No. 2:2014cv00011 - Document 62 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 08/24/15 recommending that this action be dismissed without prejudice. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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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 ARTHUR ANDERSON, 12 Plaintiff, 13 14 No. 2:14-cv-0011 MCE CKD P v. ORDER McINTRNY, et al., 15 Defendants. 16 On May 19, 2015, this court granted defendant’s motion to dismiss the First Amended 17 18 Complaint on the ground that plaintiff’s failure to exhaust administrative remedies was clear on 19 the face of the complaint. (ECF No. 56.) However, the court granted plaintiff thirty days’ leave 20 to file an amended complaint “that complies with the exhaustion requirement or explains why 21 exhaustion was ‘effectively unavailable.’” (Id. at 3.) 22 On June 22, 2015, plaintiff filed a belated opposition to defendant’s motion to dismiss. 23 (ECF No. 57.) On the same day, he filed a document titled “Amended and Supplement 832.5 24 Complaint to Original Complaint.” (ECF No. 58.) It alleges continuing wrongdoing by prison 25 staff and does not address the issue of exhaustion. (Id.) Defendant has filed an opposition 26 arguing that neither of these filings comply with the court’s May 19, 2015 order, as plaintiff has 27 shown neither exhaustion nor good cause for failing to exhaust. (ECF No. 61.) 28 //// 1 1 2 3 4 The undersigned agrees that plaintiff has not filed an amended complaint that complies with its earlier order and thus will recommend dismissal of this action. Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, plaintiff may file written objections 8 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 10 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 11 (9th Cir. 1991). 12 Dated: August 24, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 2 / ande011.fta 18 19 20 21 22 23 24 25 26 27 28 2
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