White v. Walker et al

Filing 14

FINDINGS And RECOMMENDATIONS Recommending That This Action Be Dismissed, With Prejudice, For Failure To State A Claim Upon Which Relief May Be Granted (Doc. 1 ), Objections, If Any, Day In Thirty Days, signed by Magistrate Judge Gary S. Austin on 5/1/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 6/4/2015.(Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONNY WHITE, 12 13 14 15 Plaintiff, vs. J. WALKER, et al., Defendants. 16 1:12-cv-00454-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 (Doc. 1.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 18 19 Donny White ("Plaintiff"), a former state prisoner proceeding pro se and in forma 20 pauperis, filed the Complaint commencing this civil rights action pursuant to 42 U.S.C. ' 1983 21 on March 26, 2012. (Doc. 1.) On March 17, 2015, the Court dismissed Plaintiff=s Complaint 22 for failure to state a claim, with leave to amend within thirty days. 28 U.S.C. ' 1915A; 28 23 U.S.C. ' 1915(e). (Doc. 9.) On April 16, 2015, Plaintiff filed a notice of intent not to file an 24 amended complaint. (Doc. 10.) Plaintiff states in the notice that he “intend[s] to stand on his 25 complaint rather than amend it and to appeal any order dismissing the complaint and/or action 26 which may result.” (Id.) The deadline to amend the Complaint has expired, and Plaintiff has 27 not filed an amended complaint. As a result, there is no pleading on file which sets forth any 28 claims upon which relief may be granted. 1 1 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 2 and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 3 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 4 subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 5 F.3d 1090, 1098 (9th Cir. 2011). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 8 days after being served with these findings and recommendations, Plaintiff may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 11 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 12 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 13 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: May 1, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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