Crim v. Management & Training Corp. et al

Filing 25

FINDINGS and RECOMMENDATIONS to Dismiss This Action, With Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 1/30/14. Referred to Judge Ishii. Objections, If Any, Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:12-cv-01340-AWI-GSA-PC

JOHN MICHAEL CRIM,

vs.
MANAGEMENT & TRAINING CORP., et al.,

FINDINGS AND RECOMMENDATIONS
TO DISMISS THIS ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

Defendants.
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John Michael Crim ("Plaintiff") is a federal prisoner proceeding pro se. This action was

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initiated by civil Complaint filed by Plaintiff in the Kern County Superior Court on June 12,

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2012 (Case #S-1500-CV-276883-WDP). (Doc. 2-2 at 8-30.) On August 16, 2012, defendants

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Management & Training Corp., Adler, Stewart, Mann, Patrick, Logan, McBride, and Sy

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(“Removing Defendants”) removed the case to federal court by filing a Notice of Removal

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pursuant to 28 U.S.C. § 1441(a) (federal question). (Doc. 1.)

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On November 19, 2013, the Court dismissed Plaintiff=s Complaint for failure to state a

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claim, with leave to file an amended complaint within thirty days. (Doc. 6.) 28 U.S.C. '

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1915A; 28 U.S.C. ' 1915(e). In the November 19, 2013 order, the Court informed Plaintiff of

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the deficiencies in his Complaint, and dismissed the Complaint on the ground that Plaintiff had

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failed to state a claim upon which relief could be granted. To date, Plaintiff has not complied

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with the Court=s order.1 As a result, there is no pleading on file which sets forth any claims

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upon which relief may be granted.

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However, Plaintiff filed two motions for reconsideration of the Court’s screening order, both which
were denied. (Docs. 21-24.)
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Because Plaintiff has not filed an amended complaint, the Court shall recommend

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dismissal of the claims made in the original complaint with prejudice for failure to state a claim

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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, the court HEREBY RECOMMENDS 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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2.

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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January 30, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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