Marsh v. Brown et al

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 11/1/2011 recommending that 1 Prisoner Civil Rights Complaint filed by Lawrence L Marsh be DISMISSED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/23/2011. (Lundstrom, T)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 LAWRENCE MARSH, ) ) Plaintiff, ) ) v. ) ) JERRY BROWN, et al., ) ) Defendants. ) ____________________________________) NO. 1:10-cv-02353 LJO GSA PC FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED OBJECTIONS DUE IN TWENTY DAYS 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. 20 By order filed August 29, 2011, the Court issued an order dismissing the operative 21 complaint for failure to state a claim and directing Plaintiff to file an amended complaint within 22 thirty days. Plaintiff has not filed an amended complaint. 23 In the August 29, 2011, order the Court informed Plaintiff of the deficiencies in his 24 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 25 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 26 Court will recommend that Plaintiff’s complaint be dismissed without leave to amend. See 27 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2007) (recognizing longstanding rule that leave to 28 1 amend should be granted even if no request to amend was made unless the court determines that 2 the pleading could not possibly be cured by the allegation of other facts); Noll v. Carlson, 809 3 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given leave to amend his or her 4 complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by 5 amendment). See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with 6 prejudice upheld where court had instructed plaintiff regarding deficiencies in prior order 7 dismissing claim with leave to amend). 8 9 10 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted, and that this action count as a strike under 28 U.S.C. § 1915(g). 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 13 twenty days after being served with these findings and recommendations, plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time waives all objections to the judge’s findings of fact. See 17 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 18 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 21 22 23 24 25 IT IS SO ORDERED. Dated: 6i0kij November 1, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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