Opinion
Case No. 1:15-cv-00614-AWI-BAM (PC)
11-30-2016
JAMES GARRETT, Plaintiff, v. STU SHERMAN, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE (ECF No. 21) ORDER REQUIRING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT OR NOTICE OF VOLUNTARY DISMISSAL
THIRTY (30) DAY DEADLINE
Plaintiff James Garrett ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on April 20, 2015. (ECF No. 1.)
I. Background
On February 1, 2016, the Court dismissed Plaintiff's first amended complaint and granted leave to amend within thirty (30) days. (ECF No. 11.) On February 24, 2016, Plaintiff filed a motion for preliminary injunction. (ECF No. 12.) Plaintiff stated in his motion for preliminary injunction that his second amended complaint was attached as an exhibit to that motion, but the Court could not find it. On August 15, 2016, the Court issued an order requiring Plaintiff to file an amended complaint or a voluntary dismissal within thirty (30) days. (ECF No. 15.) The Court expressly warned Plaintiff that if he failed to comply with the Court's order, the Court would recommend dismissal of this action with prejudice for failure to state a claim and for failure to obey a court order. Id. at p. 2.
Plaintiff failed to file a second amended complaint and did not comply with or otherwise respond to the Court's August 15, 2016 order. As such, on October 7, 2016, the Court issued an order for Plaintiff to show cause within fourteen (14) days of service why this action should not be dismissed for failure to state a claim, failure to obey a court order, and failure to prosecute. (ECF No. 20.) Plaintiff's response to the order to show cause was due on or before October 24, 2016. Plaintiff failed to comply with that order as well.
On November 1, 2016, the Court issued findings and recommendations that: (1) this action be dismissed, with prejudice, for failure to state a claim under 28 U.S.C. § 1915A; (2) this action be dismissed for failure to obey the Court's August 15, 2016 order (ECF No. 15) and October 7, 2016 order (ECF No. 20); (3) this action be dismissed for failure to prosecute; and (4) this dismissal count as a strike against Plaintiff under 28 U.S.C. § 1915(g). (ECF No. 21.) Plaintiff had fourteen (14) days following service of the findings and recommendations to file written objections with the Court. Id.
Plaintiff timely filed objections to the Court's November 1, 2016 findings and recommendations. (ECF No. 22.) In his objections, Plaintiff argues that his second amended complaint was included in his motion for preliminary injunction. Plaintiff also discusses the contents of his alleged second amended complaint, and states that there may be confusion between this case and another case that Plaintiff is currently prosecuting, Garrett v. Igbinosa, Case No. 1:16-cv-00259-MJS (PC).
II. Discussion
Plaintiff's objections are not wholly responsive to the Court's November 1, 2016 findings and recommendations. To the extent that Plaintiff objects to the Court's finding that he has not filed a second amended complaint, Plaintiff produced no evidence to the contrary, other than stating that it was attached to his motion for preliminary injunction. This is insufficient evidence to rebut the Court's finding, and the Court reiterates that Plaintiff's second amended complaint was not attached to or otherwise contained in his motion for preliminary injunction. As such, Plaintiff has not yet filed a second amended complaint.
Additionally, while Plaintiff's objections suggest he intends to continue prosecuting this case, his intent is not entirely clear to the Court, as he mentions in his objections another case that he is currently prosecuting, as well as the aforementioned lack of response to a number of the Court's previous orders. If Plaintiff wishes to focus on his other case instead of this one, he may file a notice to voluntarily dismiss this case without prejudice.
Nevertheless, despite Plaintiff's objections not being wholly responsive to the Court's November 1, 2016 findings and recommendations, public policy favors dispositions of cases on their merits. As such, the Court finds it proper to vacate its November 1, 2016 findings and recommendations, and grant Plaintiff thirty (30) days within which he must file a second amended complaint or a notice of voluntary dismissal. The Court advises Plaintiff that if he wishes to continue prosecuting this case, his second amended complaint should be filed separately from other motions. Upon submission, his second amended complaint will be screened in due course. The Court also admonishes Plaintiff that compliance with the Court's orders is essential, and that his timely compliance is expected. // // // // // // // // // // //
III. Conclusion
Accordingly, it is HEREBY ORDERED that:
1. The Findings and Recommendations issued on November 1, 2016 (ECF No. 21) are VACATED;IT IS SO ORDERED.
2. The Clerk's Office shall send Plaintiff a complaint form;
3. Plaintiff shall file a second amended complaint or a notice of voluntary dismissal within thirty (30) days of the date of service of this order; and
4. Plaintiff is warned that the failure to comply with this order will result in dismissal of this action , with prejudice, for failure to state a claim, failure to prosecute and failure to obey a court order.
Dated: November 30 , 2016
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE