Opinion
2:22-cv-1949 KJM DB P
07-27-2023
THERON KENNETH HOLSTON, Plaintiff, v. MARIO CRUZ et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner proceeding pro se. Plaintiff initially filed a complaint and motion to proceed in forma pauperis in conjunction with a motion to seal these documents and a request to proceed under a pseudonym on October 27, 2022. (ECF Nos. 1-3.) The court denied plaintiff's request to proceed under a pseudonym and motion to seal on November 2, 2022. (ECF No. 5.) The court struck plaintiff's complaint for failure to comply with Federal Rule of Civil Procedure 10(a) and directed plaintiff to file a new complaint within thirty days. (Id. at 4.) Plaintiff failed to file an amended complaint within thirty days. The undersigned therefore recommended that this action be dismissed for failure to prosecute and failure to comply with a court order on March 29, 2023. (ECF No. 7.)
Plaintiff filed objections to the findings and recommendations, in which he explained that he was briefly released from custody and received both the November 2, 2022, order and the findings and recommendations on April 3, 2023. (ECF No. 8.) The undersigned then vacated the findings and recommendations and granted plaintiff thirty days to file an amended complaint. (ECF No. 9.) Plaintiff was warned that failure to abide by the court's order and file an amended complaint would result in a recommendation that this action be dismissed. (Id.)
Those thirty days have passed, and plaintiff has not filed an amended complaint or otherwise responded to the court's order. Therefore, the undersigned will recommend this action be dismissed without prejudice for failure to prosecute and failure to comply with a court order. Fed.R.Civ.P. 41(b); E.D. Cal. R. 110.
For the foregoing reasons, IT IS RECOMMENDED that:
1. This action be dismissed without prejudice; and
2. The Clerk of the Court be directed to close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).