Henderson v. Smith et al

Filing 23

FINDINGS and RECOMMENDATIONS, Recommending That This Action Be Dismissed, With Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted 1 , signed by Magistrate Judge Gary S. Austin on 6/20/14: Objections, if any, due in thirty days. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS LEE HENDERSON, SR.,

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Plaintiff,

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vs.

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SMITH, et al.,

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Defendants.

1:13-cv-00287-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
BE DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED
(Doc. 1.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Curtis Lee Henderson, Sr. (“Plaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on February 27, 2013. (Doc. 1.)

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On May 8, 2014, the Court dismissed Plaintiff=s Complaint for failure to state a claim,

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with leave to file an Amended Complaint within thirty days. 28 U.S.C. ' 1915A; 28 U.S.C. '

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1915(e). To date, Plaintiff has not complied with or otherwise responded to the Court=s order.

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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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Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A

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and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure
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to state a claim upon which relief may be granted under section 1983, and that this dismissal be

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subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658

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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:

June 20, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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