Garcia v. Juarez

Filing 10

FINDINGS and RECOMMENDATIONS recommending 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: 1915(g) re 1 Prisoner Civil Rights Complaint filed by Roberto M. Garcia, Jr. ;referred to Judge Ishii,signed by Magistrate Judge Gary S. Austin on 06/14/2013. (20) Day Deadline (Martin-Gill, S)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 Case No.1:12 cv 00750 AWI GSA PC ROBERTO M. GARCIA, 11 Plaintiff, 12 FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED vs. 13 M. JUAREZ, 14 Defendant. 15 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 19 20 Rule 302. 21 By order filed May 10, 2013, the Court issued an order dismissing the operative 22 complaint for failure to state a claim and directing Plaintiff to file an amended complaint within 23 thirty days. Plaintiff has not filed an amended complaint. 24 In the May 10, 2013, order, the Court informed Plaintiff of the deficiencies in his 25 26 27 28 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 1 1 Court dismisses the claims made in the original complaint with prejudice for failure to state a 2 claim upon which the Court could grant relief. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 3 2007)(recognizing longstanding rule that leave to amend should be granted even if no request to 4 5 amend was made unless the court determines that the pleading could not possibly be cured by the 6 allegation of other facts); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(pro se litigant 7 must be given leave to amend his or her complaint unless it is absolutely clear that the 8 deficiencies of the complaint could not be cured by amendment). See Ferdik v. Bonzelet, 963 9 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed 10 11 plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure 12 13 14 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). 15 These findings and recommendations are submitted to the United States District Judge 16 17 assigned to the case, pursuant to the provisions of 28 U.S. C. § 636(b)(1)(B). Within twenty 18 days after being served with these findings and recommendations, plaintiff may file written 19 objections with the Court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 21 within the specified time waives all objections to the judge’s findings of fact. See Turner v. 22 23 Duncan, 158 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time 24 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 25 1991). 26 27 28 2 1 2 3 IT IS SO ORDERED. 4 5 Dated: UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Gary S. Austin 6 7 June 14, 2013 3

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