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Allen v. Masameno

United States District Court, C.D. California

February 20, 2014

MICHAEL DEWAYNE ALLEN, Plaintiff,
v.
DR. MASAMENO, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On November 30, 2012, Plaintiff filed a civil rights complaint. By Order filed March 27, 2013, the Court dismissed the complaint with leave to amend. The Order allowed Plaintiff to file a First Amended Complaint within thirty (30) days March 27, 2013. The Order cautioned Plaintiff that failure to file a timely First Amended Complaint could result in the dismissal of this action. Plaintiff did not file a First Amended Complaint within the allotted time.

On May 7, 2013, the Magistrate Judge recommended that the action be dismissed without prejudice. Plaintiff failed to file any timely objection to this recommendation. On October 3, 2013, the District Judge issued an "Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge." Judgment was entered on October 7, 2013, dismissing the action without prejudice.

On October 28, 2013, the Court received a letter from Plaintiff expressing a desire to continue to prosecute the action. By Order filed October 30, 2013, the Court vacated the Judgment entered October 7, 2013, and granted Plaintiff leave to file a First Amended Complaint.

Plaintiff filed a First Amended Complaint on November 18, 2013. By Order filed November 26, 2013, however, the Court observed that the First Amended Complaint did not contain any allegations of wrongdoing by anyone, had not attempted to cure any of the defects in the original complaint, and plainly failed to state any claim on which relief may be granted. The Court dismissed the First Amended Complaint, but afforded Plaintiff "one last opportunity to state a claim." The Court granted Plaintiff leave to file a Second Amended Complaint within thirty (30) days of November 26, 2013. The Court cautioned Plaintiff that failure to file a timely Second Amended Complaint in conformity with the Court's March 27, 2013 and November 26, 2013 orders "may result in the dismissal of this action." Nevertheless, Plaintiff failed to file a Second Amended Complaint within the allotted time.

DISCUSSION

The action should be dismissed without prejudice. The original complaint and the First Amended Complaint are defective for the reasons stated in this Court's prior orders. Plaintiff has failed to file a Second Amended Complaint within the allotted time. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R. , 370 U.S. 626, 629-30 (1962); see Fed.R.Civ.P. 41(b).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.


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