Washington v. Ogletree et al

Filing 13

FINDINGS And RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM Upon Which Relief Could Be Granted (Doc. 1 ), Objections Due In Twenty Days, signed by Magistrate Judge Gary S. Austin on 7/21/2013. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 7/15/2013.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.1:12 cv 01473 AWI GSA PC

FRANKIE WASHINGTON,
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Plaintiff,
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FINDINGS AND RECOMMENDATION
THAT THIS ACTION BE DISMISSED FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED

vs.
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D. OGLETREE, ET AL.,
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Defendant
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OBJECTIONS DUE IN TWENTY DAYS
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Plaintiff is a state prisoner proceeding pro se in this civil rights action . The matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
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Rule 302.

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By order filed May l 17, 2013, the Court issued an order dismissing the operative

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complaint for failure to state a claim and directing Plaintiff to file an amended complaint within

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thirty days. Plaintiff has not filed an amended complaint.

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In the May 17, 2013, order, the Court informed Plaintiff of the deficiencies in his
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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
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Court dismisses the claims made in the original complaint with prejudice for failure to state a

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claim upon which the Court could grant relief. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2007)(recognizing longstanding rule that leave to amend should be granted even if no request to
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amend was made unless the court determines that the pleading could not possibly be cured by the

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allegation of other facts); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(pro se litigant

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must be given leave to amend his or her complaint unless it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment). See Ferdik v. Bonzelet, 963

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F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed

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plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure

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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).

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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 28 U.S. C. § 636(b)(1)(B). Within twenty

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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 waives all objections to the judge’s findings of fact. See Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.
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Dated:

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

6i0kij8d

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/s/

Gary S. Austin

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June 21, 2013

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