Fresquez v. Moeroyk, et al

Filing 91

ORDER DISMISSING This Action, With Prejudice, for Failure to State a Claim Upon Which Relief May be Granted; ORDER That This Dismissal is Subject to 28 U.S.C. 1915(g); ORDER for Clerk to Close Case, signed by Chief Judge Anthony W. Ishii on 1/24/2012. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS RICHARD FRESQUEZ,

1:04-cv-05123-AWI-GSA-PC

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ORDER DISMISSING THIS ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED
(Doc. 1.)

Plaintiff,
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v.
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LIEUTENANT PIETER MOERDYK,
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ORDER THAT THIS DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(g)
Defendant.
ORDER FOR CLERK TO CLOSE CASE

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Louis Richard Fresquez (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 11, 2003, in the United

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States District Court for the Northern District of California. On March 18, 2003, Plaintiff filed an

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amended complaint, and the case was subsequently transferred to this Court. (Doc. 1.)

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On July 28, 2011, the Court dismissed Plaintiff’s amended complaint for failure to state a

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claim upon which relief may be granted, with leave to file a second amended complaint within thirty

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days. (Doc. 84.) Plaintiff filed a motion for reconsideration of the Court’s July 28, 2011 order,

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which was denied on November 10, 2011. (Docs. 85, 87.) Plaintiff was forewarned in the Court’s

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order of November 10, 2011, that his failure to file a second amended complaint in compliance with

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the Court’s order would “result in the dismissal of this action, with prejudice, for failure to state a
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claim, without further notice.” (Doc. 87 at 2 ¶III.) On December 8, 2011, Plaintiff was granted

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another thirty-day extension of time to file the second amended complaint. (Doc. 89.) The thirty-day

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time period has passed, and Plaintiff has not filed a second amended complaint. As a result, there

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is no pleading on file which sets forth any claims upon which relief may be granted under section

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1983.

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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claims upon which relief may be granted under section 1983;
2.

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This action is DISMISSED, with prejudice, based on Plaintiff’s failure to state any

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090 (9th Cir. 2011); and

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The Clerk is DIRECTED to close this case.

IT IS SO ORDERED.

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Dated:
0m8i78

January 24, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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