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Thomas Foote Riseley v. Warden

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


February 14, 2013

THOMAS FOOTE RISELEY, PLAINTIFF,
v.
WARDEN, HIGH DESERT STATE PRISON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS and RECOMMENDATION

Plaintiff proceeds pro se in this action seeking damages and injunctive relief in his complaint filed pursuant to 42 U.S.C. § 1983. On August 23, 2012, the court screened plaintiff's complaint, and found that plaintiff failed to state a claim upon which relief could be granted. See ECF No. 7. The court directed plaintiff to file an amended complaint within twenty-eight days, and warned plaintiff that his failure to file an amended complaint would result in a recommendation that the action be dismissed. Id. The court also denied plaintiff's motion to proceed in forma pauperis and directed plaintiff to file a new application. Id.

On October 16, 2012, because plaintiff had not responded to the court's August 23, 2012 order, the court issued findings and recommendations recommending that the action be dismissed with prejudice. See ECF No. 8. On October 29, 2012, plaintiff filed a response to the findings and recommendations, advising the court that he objected to dismissal, and asking the court to provide him with a new copy of the August 23, 2012 order as his paperwork was lost by staff during a transfer. See ECF No. 9 at 2. Plaintiff did not address his failure to file a new application to proceed in forma pauperis.

On November 7, 2012, the court vacated its prior findings and recommendations and ordered the clerk to provide plaintiff with a copy of the court's August 23, 2012 order. See ECF No. 10. The court additionally granted plaintiff an additional thirty days: (1) to file an amended complaint; and (2) either (a) file a complete application to proceed in forma pauperis, or (b) pay the filing fee. Id. The court specifically warned plaintiff that failure to comply with the terms of the November 7, 2012 order would result in a recommendation that this action be dismissed. Id.

To date, plaintiff has not complied with, or otherwise responded to, the November 7, 2012 order.

Accordingly, for the reasons given in the August 23, 2012 and November 7, 2012 orders, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

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 twenty-eight (28) 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." Any reply to the objections shall be served and filed within twenty-eight (28) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20130214

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