Opinion
3:22-CV-5717-JHC-DWC
01-11-2023
JONAS MIGUEL DAVIS, Plaintiff, v. JESSIE DELL, et al., Defendants.
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge.
The District Court referred this action to United States Magistrate Judge David W. Christel. Plaintiff Jonas Miguel Davis, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. See Dkt. 1. On November 23, 2022, the Court screened Plaintiff's Complaint. Dkt. 7 (“Order”). The Court declined to serve the Complaint due to deficiencies in the Complaint and directed Plaintiff to file an amended complaint on or before December 23, 2022. Id. The Court warned Plaintiff that if he failed to file an amended complaint or otherwise respond to the Order the undersigned would recommend dismissal of this action. Id.
Plaintiff has failed to comply with the Court's Order. He has not filed an amended complaint or otherwise responded to the Order. Further, as discussed in the Order, Plaintiff has failed to state a claim upon which relief can be granted. See Dkt. 7. Therefore, the Court recommends this case be dismissed without prejudice for failure to follow a Court order and failure to state a claim upon which relief can be granted.
The Court notes the docket indicates Plaintiff called the Court and requested a 28 U.S.C. § 2254 form on December 30, 2022. If Plaintiff intends to pursue a § 2254 action, it should be initiated as a separate action with a separately filed application to proceed in forma pauperis.
As Plaintiff failed to state a claim upon which relief could be granted in the Complaint, the Court finds this case should be considered a “strike” under 28 U.S.C. § 1915(g).
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on January 27, 2023, as noted in the caption.