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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS LEE HENDERSON, SR., 12 Plaintiff, 13 vs. 14 SMITH, et al., 15 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 16 17 18 19 Curtis Lee Henderson, Sr. (“Plaintiff@) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 21 commencing this action on February 27, 2013. (Doc. 1.) 22 On May 8, 2014, the Court dismissed Plaintiff=s Complaint for failure to state a claim, 23 with leave to file an Amended Complaint within thirty days. 28 U.S.C. ' 1915A; 28 U.S.C. ' 24 1915(e). To date, Plaintiff has not complied with or otherwise responded to the Court=s order. 25 As a result, there is no pleading on file which sets forth any claims upon which relief may be 26 granted. 27 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 28 and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 1 1 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 2 subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 3 F.3d 1090, 1098 (9th Cir. 2011). 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 6 days after being served with these findings and recommendations, Plaintiff may file written 7 objections with the court. Such a document should be captioned "Objections to Magistrate 8 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 9 within the specified time may waive the right to appeal the District Court's order. Martinez v. 10 Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 14 IT IS SO ORDERED. Dated: June 20, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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