(PC)Diaz v. Hurley et al, No. 2:2019cv01241 - Document 76 (E.D. Cal. 2021)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/29/2021 DENYING 75 Motion and RECOMMENDING this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(PC)Diaz v. Hurley et al Doc. 76 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ENRIQUE DIAZ, 12 13 14 15 No. 2:19-cv-1241 KJM KJN P Plaintiff, v. ORDER AND FINDINGS & RECOMMENDATIONS ASSOCIATE WARDEN HURLEY, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. By order filed May 18 21, 2021, plaintiff’s first amended complaint was dismissed with leave to file a second amended 19 complaint. On October 25, 2021, the undersigned recounted the myriad extensions of time 20 plaintiff has been granted in this action, and granted plaintiff one final sixty-day extension of time 21 to file a second amended complaint. (ECF No. 74 at 1-2, 4 n.3.) Plaintiff was advised that no 22 further extensions of time would be granted for any reason. (ECF No. 74 at 4.) Sixty days have 23 now passed, and plaintiff has not filed a second amended complaint. 24 Instead, plaintiff filed a motion seeking an order requiring physical access to the law 25 library and to his insulin treatments. (ECF No. 75.) Plaintiff seeks law library access starting 26 between 8:30 a.m. and 9:30 a.m. until 11:00 a.m. so that plaintiff could access both the law 27 library and his insulin treatments, which appear to be scheduled at 11:30 a.m. (ECF No. 72 at 1 28 “my insulin is at 11:30 a.m. 7 days a week.”) Plaintiff objects that despite the court’s last order 1 Dockets.Justia.com 1 asking the litigation coordinator to avoid scheduling plaintiff’s law library access during 2 plaintiff’s insulin treatment, he was only scheduled one 8:30 a.m. law library visit in November 3 (November 28, 2021), and was three times scheduled for 11:00 a.m. (ECF No. 75 at 2.) 4 However, plaintiff’s record also shows that plaintiff received a ducat for law library 5 attendance at 1325 (1:25 p.m.) on eight different days in November. Those ducats do not appear 6 to conflict with plaintiff’s 11:30 a.m. insulin treatments. In addition, in the prior order, plaintiff 7 was provided detailed instructions on what his amended pleading entailed, and has been provided 8 the form complaint used by prisoners to file § 1983 actions in our court. Therefore, the 9 undersigned declines to grant plaintiff additional time to file a second amended complaint, and 10 declines to recommend that his requested relief be granted because the record shows he has been 11 offered law library access that avoids the time set for his insulin treatments. (ECF No. 75 at 2.) 12 Plaintiff has had almost seven months to draft his second amended complaint, and has 13 been cautioned that no further extensions of time would be granted for any reason. (ECF No. 74 14 at 4.) Plaintiff was also advised of this court’s authority to sua sponte dismiss actions for failure 15 to comply with court orders. (ECF No. 74 at 4 n.4.) Sixty days from October 25, 2021, have now 16 passed, and plaintiff has not filed a second amended complaint. This action should be dismissed 17 without prejudice. 18 19 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No. 75) is denied; and 20 21 IT IS RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, plaintiff may file written objections 25 with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 27 //// 28 //// 2 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: December 29, 2021 4 5 /diaz1241.fta2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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