Vasquez v. Yu

Filing 27

FINDINGS and RECOMMENDATIONS, Recommending That This Action be Dismissed, With Prejudice, for Failure to State a Claim Upon Which Relief May be Granted Under Section 1983, signed by Magistrate Judge Gary S. Austin on 8/1/2012, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT VASQUEZ,

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Plaintiff,

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vs.
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DR. YU, et al.,
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Defendants.

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1:10-cv-02013-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED UNDER
SECTION 1983
(Doc. 19.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Plaintiff Vincent Vasquez, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on September 26, 2010. (Doc. 1.) On December 13,

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2011, the Court dismissed Plaintiff’s First Amended Complaint for failure to state a claim, and ordered

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Plaintiff to file a Second Amended Complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. §

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1915(e). (Doc. 20.) Plaintiff requested and was granted a thirty day extension of time. (Docs. 21, 23.)

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The thirty day time period expired, and Plaintiff did not comply with or otherwise respond to the Court's

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order. On May 22, 2012, the Court issued findings and recommendations, recommending that this action

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be dismissed, with prejudice, for failure to state a claim. (Doc. 24.) On April 19, 2012, Plaintiff filed

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objections to the findings and recommendations, and on April 23, 2012, the Court vacated the findings

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and recommendations and granted Plaintiff sixty more days to comply with the Court's December 13,

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2011 order. (Docs. 25, 26.) The sixty day time period has now expired, and Plaintiff has not complied

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with or otherwise responded to the Court’s orders. As a result, there is no pleading on file which sets

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forth any claims upon which relief may be granted.

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the Court HEREBY

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RECOMMENDS that 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 the dismissal be subject to the

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“three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th

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Cir. 2011).

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

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

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served with these findings and recommendations, Plaintiff may file written objections with the Court.

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Such a document should be captioned "Objections to Magistrate Judge's Findings and

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

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waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

August 1, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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