White v. Walker 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. 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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
J. WALKER, et al.,
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
BE DISMISSED, WITH PREJUDICE,
FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF MAY BE
OBJECTIONS, IF ANY, DUE IN THIRTY
Donny White ("Plaintiff"), a former state prisoner proceeding pro se and in forma
pauperis, filed the Complaint commencing this civil rights action pursuant to 42 U.S.C. ' 1983
on March 26, 2012. (Doc. 1.) On March 17, 2015, the Court dismissed Plaintiff=s Complaint
for failure to state a claim, with leave to amend within thirty days. 28 U.S.C. ' 1915A; 28
U.S.C. ' 1915(e). (Doc. 9.) On April 16, 2015, Plaintiff filed a notice of intent not to file an
amended complaint. (Doc. 10.) Plaintiff states in the notice that he “intend[s] to stand on his
complaint rather than amend it and to appeal any order dismissing the complaint and/or action
which may result.” (Id.) The deadline to amend the Complaint has expired, and Plaintiff has
not filed an amended complaint. As a result, there is no pleading on file which sets forth any
claims upon which relief may be granted.
Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A
and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure
to state a claim upon which relief may be granted under section 1983, and that this dismissal be
subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658
F.3d 1090, 1098 (9th Cir. 2011).
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty
days after being served with these findings and recommendations, Plaintiff may file written
objections with the court. Such a document should be captioned "Objections to Magistrate
Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections
within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,
772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
IT IS SO ORDERED.
May 1, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?