Manzanares v. Cruz et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending that this 11 Action be DISMISSED for Failure to State a Claim Upon Which Relief Can be Granted signed by Magistrate Judge William M. Wunderlich on 1/12/2009. Matter referred to Judge Ishii. (Objections to F&R due by 2/12/2009) (Figueroa, O)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. 636(b)(1). By order filed November 19, 2008, the court issued an order dismissing the operative complaint for failure to state a claim and directing Plaintiff to file an amended complaint within thirty days. Plaintiff has not filed an amended complaint. In the November 19, 2008, order the court informed Plaintiff of the deficiencies in his complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the court recommends dismissal of the claims made in the original complaint with prejudice for failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to ISRAEL CRUZ, et al., Defendants. vs. HECTOR MANZANARES, Plaintiff, 1: 07 CV 1822 AWI WMW PC FINDINGS AND RECOMMENDATION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 amend prior to dismissing for failure to state a claim). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 636 (b)(1)(B). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: January 12, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE 2

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