Lynch v. Doe, et al

Filing 37

FINDINGS and RECOMMENDATIONS, Recommending that this Action be Dismissed, with Prejudice, for Failure to State a Claim Upon Which Relief May be Granted, signed by Magistrate Judge Gary S. Austin on 10/11/12. Referred to Judge Ishii; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONEY LYNCH,

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1:09-cv-02097-AWI-GSA-PC

Plaintiff,
v.
WARDEN OF PLEASANT VALLEY
STATE PRISON, et al.,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
(Doc. 22.)

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Defendants.

OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Anthoney Lynch ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on December 2, 2009. (Doc. 1.) On May 1,

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2012, the Court dismissed Plaintiff’s First Amended Complaint for failure to state a claim, with

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leave to file a Second Amended Complaint. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc. 28.)

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Plaintiff has requested and been granted three extensions of time to file the Second Amended

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Complaint. (Docs. 30, 31, 32, 33, 34, 36.) The deadlines have now expired, and Plaintiff has not

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filed a Second Amended Complaint or otherwise responded to the Court's most recent order granting

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Plaintiff an extension of time. As a result, there is no pleading on file which sets forth any claims

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upon which relief may be granted.

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Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and

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28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff’s failure to state
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a claim upon which relief may be granted under section 1983, and that this dismissal be subject to

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the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098

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(9th Cir. 2011).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days

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after being served with these findings and recommendations, Plaintiff may file written objections

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with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings

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and Recommendations." Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.
Dated:
6i0kij

October 11, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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