Opinion
1:19-cv-01427-AWI-GSA-PC
04-06-2020
CARLTON SIMS, JR.. Plaintiff, v. SCHELLENBERG, 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
(ECF No. 16.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS
Plaintiff, Carlton Sims, Jr., is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 4, 2019, plaintiff filed the complaint commencing this action. (ECF No. 1.)
On January 15, 2020, the court screened the complaint and dismissed it for failure to state a claim with leave to amend. (ECF No. 14.) On January 27, 2020, plaintiff filed the First Amended Complaint. (ECF No. 15.) On February 12, 2020, the court dismissed the First Amended Complaint for failure to stay a claim, with leave to file a Second Amended Complaint within thirty days. (ECF No. 16.) The thirty-day time period has passed, 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.
On March 2, 2020, the court's order was returned to the court by the U.S. Postal Service as undeliverable. A notation on the envelope indicates "No Mail Receptacle." However, plaintiff has not notified the court of any change in his address. Absent such notice, service at a party's prior address is fully effective. Local Rule 182(f). --------
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: April 6 , 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE