Armstrong v. Etchebehere, et al.

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A Boone on 2/25/2013 recommending that 1 Complaint filed by Brady K. Armstrong be dismissed with prejudice. Referred to Judge Anthony W. Ishii; Objections to F&R due by 4/1/2013. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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BRADY K. ARMSTRONG,
Plaintiff,

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vs.

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C. ETCHEBEHERE, et al.,

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Defendants.
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1:12-cv-01498-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THIS ACTION BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(ECF Nos. 6 & 18.)
(THIRTY-DAY OBJECTION DEADLINE)

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Plaintiff Brady K. Armstrong (“Plaintiff”) is a prisoner proceeding pro se and in forma
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pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On November 5, 2012, the Court
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dismissed Plaintiff’s complaint with leave to amend. (ECF No. 6.) In this order, Plaintiff
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received notice that the failure to file an amended complaint would result in the dismissal of his
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action, with prejudice, for failure to state a claim. (ECF No. 6.) On November 28, 2012, Plaintiff
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filed a motion requesting an extension of time to file an amended complaint. (ECF No. 9.) On
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November 30, 2012, the Court granted the extension and cautioned Plaintiff that he would
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receive no further extensions. (ECF No. 10.) On December 13, 2012, Plaintiff filed a second
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motion for an extension of time, which was granted on December 19, 2012. (ECF Nos. 11 & 12.)
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Subsequently, on December 26, 2012, Plaintiff filed his third motion for an extension of time.
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(ECF No. 13.) Plaintiff’s third motion was granted on January 8, 2013, and gave Plaintiff until
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February 11, 2013 to file his amended complaint. (ECF No. 15.)

On January 28, 2013, Plaintiff filed a fourth motion to extend time to amend

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his complaint. (ECF No. 16.) Due to the fact that Plaintiff had not yet exhausted his third

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extension of time and because Plaintiff was advised by the Court order of November 30, 2012

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that no further extensions would be granted, the Court denied Plaintiff’s motion to extend time.

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(ECF No. 17.) On January 28, 2013, the Court ordered that Plaintiff must file an amended

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complaint by February 11, 2013 or his case would be dismissed pursuant to 28 U.S.C. § 1915A

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for failure to state any claims upon which relief may be granted. (ECF No. 17.) On February 15,

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2013, Plaintiff filed a fifth motion to extend time to file an amended complaint. (ECF No. 18.)

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On February 19, 2013, the Court denied Plaintiff’s fifth motion for extension of time. (ECF No.

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19.)
Plaintiff received two separate warnings on November 30, 2012 and January 28, 2013

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that no further extensions of time would be granted and that failure to file an amended complaint

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would result in the dismissal of his case. (ECF Nos. 10 & 17.) Plaintiff’s deadline to file an

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amended complaint has passed and Plaintiff has not complied with or otherwise responded to the

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Court’s order. As a result, there is no pleading on file which sets forth any claims upon which

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relief may be granted.
Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), it is HEREBY

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RECOMMENDED that this action BE DISMISSED, with prejudice, based on Plaintiff’s failure

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to state any claims upon which relief may be granted.

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These findings and recommendations will be submitted to the United States District

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

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

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
i1eed4

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February 25, 2013
UNITED STATES MAGISTRATE JUDGE