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)

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