Gaston v. Patel

Filing 24

FINDINGS and RECOMMENDATION Recommending that Case be Dismissed with Prejudice for Failure to State a Claim Upon Which Relief Could be Granted, signed by Magistrate Judge Michael J. Seng on 3/7/11. Referred to Judge Wanger. (Verduzco, M)

(PC)Gaston v. Patel

Doc. 24

1 2 3 4 5 6 7 8 ANTHONY GASTON, 9 Plaintiff, 10 v. 11 LARRY DELIO, et al., 12 Defendants. 13 / OBJECTIONS DUE WITHIN THIRTY DAYS 14 15 Plaintiff Anthony Gaston ("Plaintiff") is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 23, 17 2010, the Court ordered that Plaintiff's Complaint be dismissed for failure to state a claim. 18 (ECF No. 18.) Plaintiff was given thirty days to file an amended complaint and was warned 19 that failure to do so would result in dismissal of this action. (Id.) The Court granted 20 Plaintiff's motion for an extension, which resulted in his amended complaint being due 21 March 1, 2011. (ECF No. 21.) 22 To date, Plaintiff has failed to file an amended complaint. As a result, there is no 23 pleading on file which sets forth any claims upon which relief may be granted. Accordingly, 24 the Court RECOMMENDS the following: 25 1. 26 which relief could be granted; 27 2. 28 This action be closed; and Plaintiff's claims be dismissed with prejudice for failure to state a claim upon (ECF No. 18) FINDINGS AND RECOMMENDATION RECOMMENDING THAT CASE BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED CASE NO. 1:09-cv-1966-OWW-MJS (PC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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3.

This dismissal count as a "strike" for purposes of 28 U.S.C. § 1915(g).

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). Not later than March 20, 2011, Plaintiff 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." Plaintiff is advised that 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: 97k110 March 7, 2011 /s/ UNITED STATES MAGISTRATE JUDGE

Michael J. Seng

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