Smith v. Largoza et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 11/21/2013 recommending that 1 Prisoner Civil Rights Complaint be DISMISSED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/26/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEANETTE SMITH,

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Plaintiff,
vs.
DR. LARGOZA, et al.,

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Defendants.

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1:12-cv-00503-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE WITH PREJUDICE
FOR PLAINTIFF’S FAILURE TO STATE
A CLAIM
(Doc. 9.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On October 11, 2013, the court issued an order dismissing Plaintiff’s Complaint, with

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leave to file an amended complaint within thirty days. (Doc. 9.) In the October 11, 2013,

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order, the court informed Plaintiff of the deficiencies in her Complaint, and dismissed the

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Complaint on the ground that Plaintiff had failed to state a claim upon which relief could be

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granted. To date, Plaintiff has not complied with or otherwise responded to the court=s order.1

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As a result, there is no pleading on file which sets forth any claims upon which relief may be

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granted.

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Because Plaintiff has not filed an amended complaint, the court recommends that

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Plaintiff’s claims made in the original Complaint be dismissed with prejudice for failure to state

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The United States Postal Service returned the order on April 22, 2013 as undeliverable. A notation on
the envelope indicates that Plaintiff was paroled. However, Plaintiff has not notified the court of any change in his
address. Absent such notice, service at a party=s prior address is fully effective. Local Rule 182(f).
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a claim upon which the court could grant relief. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th

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Cir.1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to

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dismissing for failure to state a claim).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action be

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DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim upon which relief may

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be granted under § 1983; and

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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).

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

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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November 21, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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