Opinion
1:19-cv-00115-DAD-GSA-PC
02-25-2021
CORY DWAYNE MICENHEIMER, Plaintiff, v. KERN VALLEY STATE PRISON, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE
(Doc. No. 22.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS
Plaintiff, Corey Dwayne Micenheimer is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 24, 2019, plaintiff filed the complaint commencing this action. (Doc. No. 1.) On February 11, 2019, the court screened the complaint and issued an order dismissing the complaint for failure to state a claim and violation of Rule 8(a) of the Federal Rules of Civil Procedure, with leave to file an amended complaint within thirty days. (Doc. No. 7.) On July 1, 2019, plaintiff filed the first amended complaint. (Doc. No. 15.)
On May 13, 2020, the court dismissed the first amended complaint for violation of Rules 8(a) and 18 of the Federal Rules of Civil Procedure, with leave to file a second amended complaint within thirty days. (Doc. No. 22.) Plaintiff was granted two extensions of time, one for sixty days and then another for thirty days to amend the complaint. (Doc. Nos. 24, 30.) The deadlines for amending the complaint have now expired and plaintiff has not filed a second amended complaint, or otherwise responded to the court's order. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Pursuant to 28 U.S.C. § 1915A, this case be dismissed, with prejudice, based on plaintiff's failure to obey a court order, failure to prosecute, and failure to state a claim upon which relief may be granted under § 1983; and
2. The clerk 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 Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days from the date of service of these findings and recommendations, Plaintiff may file written objections with the court. 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: February 25 , 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE