United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO.
16)
Plaintiff
Arthur John Graves (“plaintiff”) is proceeding
pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. The matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Plaintiff
was an inmate in the custody of Fresno County Jail in Fresno,
California, when he filed his original complaint with this
court on September 17, 2018. (Doc. No. 1.) On March 1, 2019,
plaintiff filed a notice of change of address listing his
address as Napa State Hospital of the California Department
of State Hospitals (“DSH-Napa”). (Doc. No. 10.)
It is not clear to the court where plaintiff is currently
being confined. The court served plaintiff by mail at the
DSH-Napa address of record on July 2, 2019, but that mail was
returned to the court as undeliverable, unable to forward, on
July 22, 2019. Plaintiff has not filed a second notice of
change of address, which was due by September 30, 2019.
On
November 7, 2018, the assigned magistrate judge screened
plaintiff's complaint pursuant to 28 U.S.C. § 1915A
and determined that it failed to state a cognizable claim
upon which relief could be granted. (Doc. No. 4.) On November
27, 2018, plaintiff timely filed an amended complaint
alleging claims against defendant “Officer
Franks” of the Fresno Police Department for excessive
use of force and carrying out an unlawful arrest. (Doc. No.
5.) On January 9, 2019, the assigned magistrate judge issued
a screening order dismissing plaintiff's amended
complaint, without prejudice, because plaintiff failed to
state any cognizable claim. (Doc. No. 8.) Plaintiff was
granted leave to file a second amended complaint within
thirty (30) days after service of that order to attempt to
cure the deficiencies identified by the assigned magistrate
judge in the screening order. (Id. at 11-12.)
Plaintiff was warned that his failure to file a second
amended complaint in compliance with the screening order
would result in a recommendation that this action be
dismissed with prejudice for failure to state a claim and to
obey a court order. (Id. at 12.) Plaintiff did not
file a second amended complaint within the allotted time and
still has not done so.
On
February 19, 2019, the assigned magistrate judge issued an
Order to Show Cause (“OSC”) “why a
recommendation should not issue for this action to be
dismissed for Plaintiff's failure to comply with the
court's January 9, 2019 screening order, by not filing an
amended complaint within the specified period of time and for
failure to state a cognizable claim.” (Doc. 9.) The OSC
advised plaintiff that he could alternatively “file an
amended complaint or a notice of voluntary dismissal”
within that same time period, and cautioned plaintiff that
failure to respond to the OSC within twenty-one (21) days of
the date of service of the OSC would result in a
recommendation that this action be dismissed. (Id.
at 2.)
On
March 1, 2019, plaintiff filed a notice of change of address
(Doc. No. 10), and the court re-served the OSC on plaintiff
at his new address on March 6, 2019. On March 21, 2019,
plaintiff filed a response to the OSC stating that he
“feel[s] the Federal Gov. is covering up for Fresno
P.D.” and requesting the court “be more specific
. . . on what part of my claim is not understandable.”
(Doc. No. 11.) On April 1, 2019, in view of plaintiff's
change of address and his response to the OSC, the magistrate
judge discharged the OSC and provided plaintiff with a copy
of the January 9, 2019 screening order identifying the
deficiencies in the amended complaint and the applicable
legal standards. (Doc. No. 12.) The court also granted
plaintiff thirty (30) days leave to file a second amended
complaint curing the pleading deficiencies identified in the
January 9, 2019 screening order. (Id. at 2.)
Plaintiff failed to file a second amended complaint by the
deadline.
On May
9, 2019, the magistrate judge issued a second OSC requiring
plaintiff to show cause “why a recommendation should
not issue for this action to be dismissed for plaintiff's
failure to comply with the court's April 1, 2019 order by
not filing an amended complaint within the specified period
of time and for failure to state a cognizable claim.”
(Doc. No. 13.) The second OSC again advised plaintiff that he
could alternatively “file an amended complaint or a
notice of voluntary dismissal” within that same time
period, and cautioned plaintiff that failure to respond to
the second OSC within twenty-one (21) days of its service
would result in a recommendation that this action be
dismissed. (Id. at 2.) On May 20, 2019, plaintiff
filed a document directed to the “Clerk of Court,
” stating that his “claim is simple” and
requesting appointment of a “Federal Defendant”
to assist with his case due to his status as a “legally
Disabled. Vet.” (Doc. No. 14.) On May 24, 2019, the
magistrate judge discharged the second OSC, denied
plaintiff's request for the appointment of counsel, and
granted him (“one last and final time”) an
additional thirty (30) days' leave to file a second
amended complaint curing the deficiencies identified by the
court in its screening order. (Doc. No. 15.) Plaintiff was
cautioned that his failure to comply with the May 24, 2019
order would result in a recommendation that this action be
dismissed. (See id. at 4.) Plaintiff again failed to
file a second amended complaint.
Accordingly,
on July 2, 2019, the magistrate judge issued findings and
recommendations, recommending that this action be dismissed
due to plaintiff's failure to obey the court's
orders, prosecute this action, and state a cognizable claim.
(Doc. No. 16.) Those findings and recommendations were mailed
to plaintiff's address of record and contained notice
that any objections thereto were to be filed within
twenty-one (21) days. (Id.) On July 22, 2019, the
service copy of the findings and recommendations were
returned to the court as undeliverable, unable to forward. No
objections to the pending findings and recommendations have
been filed with the court, and the time for doing so has
expired.
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this court has conducted a de novo
review of the case. Having carefully reviewed the entire
file, the court concludes that the findings and
recommendations are supported by the record and by proper
analysis.
Accordingly:
1. The findings and recommendations issued on July 2, 2019
(Doc. No. 16) are adopted in full;
2. This action is dismissed with prejudice due to plaintiffs
failure to state a cognizable claim, failure to obey a court
order, and failure to prosecute; and
3. The Clerk of the Court is directed to close ...