Opinion
1:22-cv-00248-AWI-CDB
01-11-2023
EURAL DEBBS, SR., Plaintiff, v. VALLEY CONVALSCENT HOSPITAL, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING WITHOUT PREJUDICE PLAINTIFF'S FIRST AMENDED COMPLAINT
(DOC. 11)
Eural Debbs, Sr. (“Plaintiff') is proceeding pro se and in forma pauperis in this action. (Docs. 1-2, 5). On March 4, 2022, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. 4). The Court screened Plaintiff's FAC on March 21, 2022. (Doc. 6). The Court found Plaintiff's FAC failed to state a claim against any defendant and provided Plaintiff 30 days to file a Second Amended Complaint (“SAC”) or notify the Court in writing that he wants to stand on his FAC. Id. Plaintiff failed to respond within the provided 30 days.
On May 12, 2022, the Court issued an order to show cause why this action should not be dismissed for failure to comply with the Court's orders. (Doc. 7). Plaintiff filed a response to the order to show cause on June 3, 2022 (Doc. 8), and the Court issued an order discharging the order to show cause (Doc. 9). Again, the Court provided Plaintiff 30 days to file a SAC or notify the Court in writing that he wants to stand on his FAC. Id. at 13. Plaintiff failed to respond within the provided 30 days.
On October 19, 2022, the assigned magistrate judge found Plaintiff had failed to comply with a court order and failed to prosecute his case. (Doc. 11). The assigned magistrate judge recommended the action be dismissed without prejudice. Id. The Court served the findings and recommendations on Plaintiff by mail on November 4, 2022. (Doc. 12). The findings and recommendations advised Plaintiff that he must file any objections within 14 days after service of the order and that the “failure to file objections within the specified time may waive the right to appeal the District Court's order.” Id. at 5 (citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
On November 14, 2022, the Court received notice the findings and recommendations served on Plaintiff by mail were returned as undeliverable. (Doc. 12). On December 16, 2022, Plaintiff's address was updated pursuant to a notice of change of address filed in Debbs v. Dignity Health Hospital, Case No. 1:22-cv-00351-ADA-HBK. (Doc. 13). That same day, the Court reserved the findings and recommendations on Plaintiff by mail. Id. Plaintiff did not file objections or any other response to the findings and recommendations, and the deadline to do so has expired.
Pursuant to 28 U.S.C. § 636(b)(1)(C), and Local Rule 304, this Court conducted a de novo review of this case. Having carefully reviewed the entire matter, this Court concludes the findings and recommendations are supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The October 19, 2022, Findings and Recommendations (Doc. 11) are adopted in full;
2. Plaintiff's first amended complaint (Doc. 4) is dismissed without prejudice for failure to prosecute and failure to comply with a court order; and
3. The Clerk of the Court be directed to close this case.
IT IS SO ORDERED.