Aaron Thornton v. Penner

Filing 13

FINDINGS and RECOMMENDATIONS Recommending that this 1 Action be Dismissed, with Prejudice, for Failure to State a Claim upon which Relief May be Granted; Objections, if any, Due in Thirty Days signed by Magistrate Judge Gary S. Austin on 8/7/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 9/11/2014. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 AARON THORNTON, 11 Plaintiff, 12 vs. 13 DON PENNER, 14 Defendant. 1:14-cv-00271-AWI-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 15 16 17 Aaron Thornton (“Plaintiff@) is a state hospital patient proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint 19 commencing this action on February 24, 2014. (Doc. 1.) 20 On June 19, 2014, the Court dismissed Plaintiff=s Complaint for failure to state a claim, 21 with leave to file an Amended Complaint within thirty days. (Doc. 11.) 28 U.S.C. ' 1915A; 28 22 U.S.C. ' 1915(e). To date, Plaintiff has not complied with or otherwise responded to the 23 Court=s order.1 As a result, there is no pleading on file which sets forth any claims upon which 24 relief may be granted. 25 26 27 28 1 On June 27, 2014, the U.S. Postmaster returned the court’s order to the court as undeliverable, with the notation “no such name.” (Court Record.) On June 30, 2014, the order was re-served upon Plaintiff at a new address. (Court Record.) On July 10, 2014, the mail was again returned to the court as undeliverable. (Court Record.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party=s prior address is fully effective. Local Rule 182(f). 1 1 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 2 and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 3 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 4 subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 5 F.3d 1090, 1098 (9th Cir. 2011). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 8 days after being served with these findings and recommendations, Plaintiff may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court's order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 IT IS SO ORDERED. Dated: August 7, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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