United States District Court, E.D. California
August 13, 2014
PETER TORRES, JR., and on behalf for A.P.F.T. (MINOR), Plaintiffs,
BRADLEY HUDSON, County Executive for Sacramento County, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
On April 8, 2014, the court granted plaintiff's motion to proceed in forma pauperis and dismissed plaintiffs' complaint with leave to amend. ECF No. 3. The complaint was dismissed for failure to allege facts showing that defendants were proper defendants for purposes of plaintiffs' 28 U.S.C. § 1983 claim, and for failure to allege facts in support of plaintiffs' claims brought under 28 U.S.C. §§ 1985, 1986, and 1988. The order also observed that plaintiff Peter Torres purported to assert claims on behalf of his minor grandchild, A.P.F.T., and that Torres was not permitted to bring an action on behalf of a minor without first retaining an attorney. Accordingly, the complaint was dismissed and plaintiffs were given thirty days to file an amended complaint curing the deficiencies identified in the April 8, 2014 order. Id. at 8. Plaintiff was also admonished that failure to timely file an amended complaint would result in a recommendation that the action be dismissed. Id. at
On May 8, 2014, rather than submitting an amended complaint, plaintiff Torres filed a motion for appointment of counsel. ECF No. 4. That motion was denied on June 17, 2014. ECF No. 4. The order denying Torres's motion for appointment of counsel directed plaintiffs to file an amended complaint within thirty days in accordance with the April 8, 2014 order. Plaintiffs were again admonished that failure to timely do so would result in a recommendation that this action be dismissed. Id.
The deadline for plaintiffs to file a first amended complaint has now passed, and plaintiffs have not filed a first amended complaint. Therefore, this action should be dismissed for failure to prosecute and to comply with court orders. See Fed.R.Civ.P. 41(b); E.D. Cal. L.R. 110.
Accordingly, it is hereby RECOMMENDED that:
1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiffs' failure to prosecute the action and to comply with court orders; 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 28 U.S.C. § 636(b)(1). 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).