Opinion
Case No. 2:17-cv-00315-JAD-NJK
05-12-2017
TYRONE HURT, Plaintiff(s), v. HILLARY R. CLINTON, et al., Defendant(s).
REPORT AND RECOMMENDATION
On March 2, 2017, the Court screened Plaintiff's complaint as required by 28 U.S.C. § 1915. Docket No. 5. The Court found Plaintiff's complaint deficient because it was not sufficiently legible to enable the Court or any opposing party to fully understand it. Id. at 1. The Court ordered that, to the extent Plaintiff believed he could cure the identified defect, he must file an amended complaint by April 3, 2017. Id. at 2. On March 13, 2017, Plaintiff filed an amended complaint. Docket No. 7. On March 17, 2017, the Court dismissed Plaintiff's complaint with leave to amend, again because it was illegible. Docket No. 8. at 1-2. The Court gave Plaintiff one final opportunity to cure the identified defect and ordered him to file a second amended complaint, no later than April 17, 2017. Id. The Court warned Plaintiff that failure to comply with its order would result in the recommended dismissal of this case, without prejudice. Id. at 2. To date, Plaintiff has not filed a second amended complaint. See Docket. Accordingly, the undersigned RECOMMENDS that this case be DISMISSED without prejudice.
The Court notes that Plaintiff filed a notice of appeal. Docket No. 14. No dispositive rulings have been issued in this case. Instead, Plaintiff appeals the Court's order denying his motion for the Court to reconsider its order denying his motion for appointment of counsel. See id. Notwithstanding that notice of appeal, this Court retains jurisdiction over this case. See, e.g., Nascimento v. Dummer, 508 F.3d 905 (9th Cir.2007) ("when an improper appeal is taken, the district court retains its jurisdiction to act on the case"). --------
IT IS SO ORDERED.
Dated: May 12, 2017.
/s/_________
NANCY J. KOPPE
United States Magistrate Judge
NOTICE
Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).