(PC) Smith v. Listen et al, No. 2:2018cv03198 - Document 28 (E.D. Cal. 2019)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/19/2019 ORDERING the Clerk to randomly assign a district judge to this case and RECOMMENDING this action be dismissed for plaintiff's failure to prosecute and failure to comply with court orders. 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 ANTHONY XAVIER SMITH, 12 13 14 15 No. 2:18-cv-3198 DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS LISTEN, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on November 28, 2018 by 19 filing a complaint in the Northern District. (ECF No. 1.) On December 12, 2018, the Northern 20 District transferred the case to this court. (ECF No. 5.) After plaintiff filed his motion to proceed 21 in forma pauperis in March 2019, this court granted plaintiff in forma pauperis status, screened 22 the complaint, and determined plaintiff failed to state a cognizable claim for relief. (ECF No. 21.) 23 Plaintiff was provided with legal standards for his potential claims and with instructions for filing 24 an amended complaint. He was given thirty days to file a first amended complaint. On May 31, 25 he filed a first amended complaint. (ECF No. 24.) 26 In an order filed June 7, this court found plaintiff failed to state any potentially cognizable 27 claims in his first amended complaint. (ECF No. 25.) Plaintiff was again given instructions for 28 filing a second amended complaint and thirty days to do so. Plaintiff then requested an extension 1 1 of time. In an order filed June 28, this court granted plaintiff sixty days from the date of that 2 order to file a second amended complaint. Plaintiff was warned that if he failed to file a timely 3 second amended complaint, this court may recommend this action be dismissed. 4 5 6 7 8 9 10 More than sixty days have passed and plaintiff has not filed a second amended complaint or otherwise responded to the court’s June 28 order. Accordingly, the Clerk of the Court is HEREBY ORDERED to randomly assign a district judge to this case; Further, IT IS RECOMMENDED that this action be dismissed for plaintiff’s failure to prosecute and failure to comply with court orders. See E.D. Cal. R. 110; Fed. R. Civ. P. 41. These findings and recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, plaintiff may file written objections 13 with the court. The document should be captioned “Objections to Magistrate Judge's Findings 14 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 Dated: September 19, 2019 18 19 20 21 22 DLB:9 DLB1/prisoner-civil rights/smit3198.fta fr 23 24 25 26 27 28 2

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