Gonzales v. Mims

Filing 13

FINDINGS and RECOMMENDATIONS recommending that pursuant to 28:1915A and 28:1915(e), this action be DISMISSED, with prejudice, based on Plaintiff's failure to state claim upon which relief may be granted under section 1983, an that this DISMISSAL be subject to the "Three Strikes" provision set forth in 28:1915(g) ;re 11 Amended Prisoner Civil Rights Complaint filed by Leonard Quiroz Gonzales. referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 8/13/14. Objections to F&R due by 9/16/2014 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEONARD QUIROZ GONZALES, 12 Plaintiff, 13 14 15 vs. MARGARET MIMS, et al., Defendants. 1:13-cv-01069-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 Leonard Quiroz Gonzales (APlaintiff@) is an inmate at the Fresno County Jail, 19 proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. 20 ' 1983. Plaintiff filed the Complaint commencing this action on July 12, 2013. (Doc. 1.) On 21 January 24, 2014, Plaintiff filed the First Amended Complaint. (Doc. 11.) 22 On July 1, 2014, the Court dismissed Plaintiff=s First Amended Complaint for failure to 23 state a claim, with leave to file a Second Amended Complaint within thirty days. (Doc. 12.) 28 24 U.S.C. ' 1915A; 28 U.S.C. ' 1915(e). To date, Plaintiff has not complied with or otherwise 25 responded to the Court=s order. As a result, there is no pleading on file which sets forth any 26 claims upon which relief may be 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: August 13, 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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