Opinion
Case No. C08-5480BHS/JKA.
March 5, 2009
REPORT AND RECOMMENDATION
This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrate Judges' Rules MJR 1, MJR 3, and MJR 4. On December 3, 2008, the undersigned entered a Report and Recommendation to deny a motion to dismiss without prejudice. The undersigned recommended plaintiff be given thirty days to file an amended complaint (Dkt. # 16).
The court adopted that Report and Recommendation on January 20, 2009. The court entered an order that gave plaintiff until February 23, 2009, to file an amended complaint (Dkt # 17). As of March 4, 2009, no amended complaint has been filed. The court now recommends this action be DISMISSED WITH PREJUDICE for failure to follow a court order and failure to prosecute.
This dismissal is authorized by the courts inherent power to control its own docket and sanction a party that fails to comply with a court order. The original motion to dismiss was denied because the court could not say plaintiff was unable to plead facts that could state a claim. Plaintiff has now been given the opportunity to plead those facts and he has failed to do so.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report and Recommendation 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 appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on April 2, 2009, as noted in the caption.