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Fernando Shah v. Employment Development Department

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 25, 2012

FERNANDO SHAH, PLAINTIFF,
v.
EMPLOYMENT DEVELOPMENT DEPARTMENT, DEFENDANT.

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). On February 23, 2012, the court dismissed plaintiff's complaint and granted plaintiff thirty days to file an amended complaint. Dckt. No. 21. Then, on March 23, 2012, plaintiff filed a document labeled "First Amended Complaint." Dckt. No. 22. However, because the document was not an amended complaint and instead was an opposition to defendant's earlier motion to dismiss, on April 6, 2012, the court struck the purported amended complaint and gave plaintiff until April 30, 2012 to file a proper amended complaint to the extent that plaintiff could properly state a claim under Title II of the ADA, the Rehabilitation Act of 1973, or another appropriate federal statute. The order further provided that "[f]ailure to timely file an amended [would] result in a recommendation that this action be dismissed." Id. at 3.

On May 8, 2012, because the April 30 deadline had passed and plaintiff had not filed an amended complaint or otherwise responded to the court's April 6 order, the court ordered plaintiff to show cause, on or before May 21, 2012, why this action should not be dismissed for failure to prosecute and/or for failure to comply with court orders. Dckt. No. 25. The order also directed plaintiff to file an amended complaint on or before May 21, 2012, and warned that a failure to comply would "result in a recommendation that this action be dismissed for failure to prosecute and/or for failure to comply with court orders. See Fed. R. Civ. P. 41(b); E.D. Cal. L.R. 110." Id. at 2.

Once again, the deadline has passed and plaintiff has not filed an amended complaint or otherwise responded to the court's order to show cause.

Accordingly, IT IS HEREBY ORDERED that the status (pretrial scheduling) conference currently set for hearing on July 11, 2012 is vacated.*fn1

IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice, and that the Clerk be directed to close this case. Fed. R. Civ. P. 41(b); L.R. 110.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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