(PC) Allen v. Bentacourt

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 11 KEVIN ALLEN, 1:18-cv-01187-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 vs. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM AND FAILURE 14 V. BENTACOURT, et al., TO OBEY A COURT ORDER (ECF No. 28.)

Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN (14) DAYS 19 Kevin Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On August 31, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On July 24, 2019, the court screened the Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 12.)

23 On August 15, 2019, Plaintiff filed the First Amended Complaint. (ECF No. 13.) On December 11, 2019, the court screened the First Amended Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 15.)

26 On December 27, 2019, Plaintiff requested reconsideration of the screening order by the district judge, and also appealed the screening order to the Ninth Circuit Court of Appeals. (ECF No. 17.) On January 27, 2020, the Ninth Circuit dismissed Plaintiff’s appeal (no. 19-17602) for lack of jurisdiction. (ECF No. 19.) On January 30, 2020, District Judge Lawrence J. O’Neill denied Plaintiff’s request for reconsideration and ordered Plaintiff to comply with the screening order within thirty days. (ECF No. 20.) The Ninth Circuit’s mandate for appeal no. 19-17602 was issued on February 18, 2020. (ECF No. 24.)

5 On February 14, 2020, Plaintiff appealed the district judge’s order denying Plaintiff’s request for reconsideration to the Ninth Circuit Court of Appeals. (ECF No. 22.) On March 27, 2020, the Ninth Circuit dismissed Plaintiff’s appeal (no. 20-15265) for lack of jurisdiction. (ECF No. 26.) The Ninth Circuit’s mandate for appeal no. 20-15265 was issued on April 20, 2020.

9 (ECF No. 27.)

10 On April 23, 2020, the court issued an order requiring Plaintiff to file the Second Amended Complaint within thirty days. (ECF No. 28.) On May 27, 2020, Plaintiff filed a document titled Request for Judicial Notice in which he again requests reconsideration of the December 11, 2019 screening order. (ECF No. 30.) On June 26, 2020, the court issued an order denying Plaintiff’s motion for reconsideration and requiring Plaintiff to file the Second Amended Complaint within thirty days. (ECF No. 32.)

16 On July 20, 2020, Plaintiff filed a motion for appointment of counsel to assist him with the amended complaint. (ECF No. 33.) On July 23, 2020, the court denied the motion for appointment of counsel. (ECF No. 34.)

19 The thirty-day time period for filing the Second Amended Complaint, pursuant to the court’s June 26, 2020 order, has expired and Plaintiff has not filed the Second Amended Complaint. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted.

23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Pursuant to 28 U.S.C. § 1915A, this case be DISMISSED, with prejudice, based 25 on Plaintiff’s failure to state a claim and failure to obey a court order; and 26 2. The Clerk be directed to close this case.

27 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)(l). 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.

9 Dated: August 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE