Opinion
1:20-cv-00195-NE-JLT (PC)
06-09-2021
DARRYL RAY MILLS, Plaintiff, v. C. PFEFFER, et al., Defendants.
ORDER DIRECTING PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT (DOC. 20)
JENNIFER L. THURSTON CHIEF UNITED STATES MAGISTRATE JUDGE
On October 19, 2020, the Court entered a screening order finding that Plaintiff's complaint fails to state a claim on which relief may be granted. (Doc. 13.) The Court granted Plaintiff leave to file an amended complaint, a voluntary dismissal, or notice that he wishes to stand on his complaint. The Court advised Plaintiff: “If the last option is chosen, the undersigned will issue findings and recommendations to dismiss the complaint without leave to amend, plaintiff will have an opportunity to object, and the matter will be decided by a District Judge.” Id.
Plaintiff filed a Notice of Election to Stand on the Complaint. (Doc. 14. ) Accordingly, the Court issued findings and recommendations to dismiss complaint with leave to amend within fourteen days. (Doc. 16.) Plaintiff filed two pleadings captioned, “Objections to Magistrate Judge's Findings and Recommendations.” (Docs. 15, 16.) However, the pleadings did not present argument or point to any error by the magistrate judge. Therefore, on March 29, 2021, the Court entered an order adopting the findings and recommendations and dismissing the complaint with leave to amend within thirty days. (Doc. 19.)
After thirty days passed without the filing of a first amended complaint, the Court entered an order requiring Plaintiff to show cause why this action should not be dismissed for failure to comply with a court order. (Doc. 20.) In the alternative, the Court granted Plaintiff leave to file a first amended complaint within twenty-one days. Id.
On June 2, 2021, Plaintiff filed a response to the order to show cause. (Doc. 21.) In this response, Plaintiff states that he “indeed for a fact filed a first amended complaint in which was sent via U.S. Mail (proof of service) included dated 10/1/2020 and accepted by the Court Docket No. 16 as well as Docket No. 15.” (Doc. 21.) Despite this insistence by Plaintiff, a review of the docket reveals that he did not file a first amended complaint in this case. The Court notes, however, that Plaintiff filed a second amended complaint on 10/1/2020 in an unrelated case, Mills v. Clarke, No. 1:20-cv-00498-HBK.
Because Plaintiff expresses his desire to proceed with this action, the Court will give Plaintiff one more opportunity to file a first amended complaint within 21 days of the date of service of this Order. Alternatively, Plaintiff may file a voluntary dismissal.
Failure to comply with this order will result in a recommendation that the Court dismiss this case for failure to obey a court order.
IT IS SO ORDERED.