Vanderwerff v. Allison et al

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 9/23/2014 recommending that 1 Prisoner Civil Rights Complaint be DISMISSED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER EVAN VANDERWERFF,

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Plaintiff,
v.
K. ALLISON, et al.,
Defendants.

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1:13-cv-00521-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
FOURTEEN-DAY DEADLINE

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Plaintiff Christopher Evan Vanderwerff (“Plaintiff”) is a state prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated

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this action on February 13, 2013.

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On April 25, 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). Plaintiff was warned that if he failed to file an amended complaint in compliance with

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the order, this action would be dismissed for failure to state a claim.

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Plaintiff failed to file an amended complaint. As such, on June 6, 2014, the undersigned

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issued Findings and Recommendations that this action be dismissed based on Plaintiff’s failure

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to state any claims upon which relief may be granted. (ECF No. 17.) However, on the same

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date, Plaintiff filed a motion requesting a forty-five (45) day extension of time to file his

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amended complaint. (ECF No. 16.) Based on Plaintiff’s motion, on June 10, 2014, the Court

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vacated the findings and recommendations and granted Plaintiff a forty-five day extension of
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time to file his amended complaint. Plaintiff’s amended complaint was due on or before July 24,

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2014. (ECF No. 18.)

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On July 25, 2014, Plaintiff filed a second motion requesting an additional forty-five days

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to file his amended complaint. (ECF No. 19.) On July 29, 2014, the Court granted Plaintiff’s

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motion for an extension of time. Plaintiff’s amended complaint was due on or before September

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7, 2014. (ECF No. 20.)

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On September 5, 2014, Plaintiff filed a motion for appointment of counsel. (ECF No.
21.) The Court denied the motion on September 8, 2014. (ECF No. 22.)

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The deadline for Plaintiff to file his amended complaint has passed and Plaintiff has not

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complied with or otherwise responded to the Court’s order. As a result, there is no pleading on

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file which sets forth any claims upon which relief may be granted.

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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 based on Plaintiff’s failure to state any claims

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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 Title 28 U.S.C.§ 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the Court. The 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.

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Dated:

/s/ Barbara

September 23, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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