Opinion
2:21-cv-01544-RAJ-TLF
03-07-2022
DANIEL GARNICA-MELGOZA, Plaintiff, v. LUCY BURKE, et al., Defendants.
Noted for March 25, 2022
REPORT AND RECOMMENDATION
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on plaintiff's failure to respond to the Court's order to show cause or amend the complaint (“Order”). Dkt. 4. Plaintiff is proceeding pro se in this matter, which has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a).
Plaintiff initiated this matter on November 12, 2021. Dkt. 1. After screening the complaint, the Court found the complaint deficient because it failed to state a claim upon which relief could be granted. Dkt. 4. The Court declined to serve the complaint but gave plaintiff an opportunity to file an amended complaint curing the deficiencies or to show cause why this case should not be dismissed. Id. Plaintiff was ordered to respond on or before February 25, 2022. Id. at 4. The Court warned plaintiff that failure to file an amended pleading or to adequately address the issues identified in the Order would result in the Court recommending dismissal of this action and that the dismissal would count as a “strike” under 28 U.S.C. § 1915(g). Id.
Plaintiff also filed a motion to proceed in forma pauperis (“IFP”). Dkt. 3. Because the Court found that plaintiff's claim failed to state a claim upon which relief can be granted and plaintiff might not be able to correct the deficiencies, the Court deferred consideration of plaintiff's IFP motion until he responded to the Order.
Plaintiff did not follow up-he has not filed a response to the Order, nor filed an amended complaint. As plaintiff has failed to respond to the Court's Order or to prosecute this case, the Court recommends that this action be DISMISSED without prejudice. See Fed.R.Civ.P. 41(b). The Court further recommends that this dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). Finally, the Court recommends that plaintiff's motion to proceed IFP (Dkt. 3) should be DENIED as moot.
Plaintiff has fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985).
Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed set this matter for consideration on March 25, 2022, as noted in the caption.