Shehee v. Flores, et al.

Filing 17

FINDINGS and RECOMMENDATION that this 6 Action be Dismissed for Failure to State a Claim Upon which Relief can be Granted; Objections Due in Twenty Days signed by Magistrate Judge Gary S. Austin on 2/18/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/16/2015. (Sant Agata, S)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 Case No.1:14 cv 00589 LJO GSA GREGORY ELL SHEHEE, 7 Plaintiff, 8 FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED vs. 9 R. FLORES, ET AL., 10 Defendants 11 OBJECTIONS DUE IN TWENTY DAYS 12 13 Plaintiff is a civil detainee proceeding pro se in this civil rights action . The matter was 14 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 15 16 17 18 19 Rule 302. By order filed November 14, 2014, the Court issued an order dismissing the operative complaint for failure to state a claim and directing Plaintiff to file an amended complaint within thirty days. On December 12, 2014, Plaintiff was granted a 60 day extension of time. Plaintiff 20 has not filed an amended complaint. 21 22 In the November 14, 2014, order, the Court informed Plaintiff of the deficiencies in his 23 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 24 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 25 26 Court dismisses the claims made in the original complaint with prejudice for failure to state a claim upon which the Court could grant relief. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 27 28 1 1 2007)(recognizing longstanding rule that leave to amend should be granted even if no request to 2 amend was made unless the court determines that the pleading could not possibly be cured by the 3 allegation of other facts); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(pro se litigant 4 5 must be given leave to amend his or her complaint unless it is absolutely clear that the 6 deficiencies of the complaint could not be cured by amendment). See Ferdik v. Bonzelet, 963 7 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed 8 plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure 10 11 12 to state a claim upon which relief can be granted, and that this action count as a strike under 28 U.S.C. §1915(g). 13 14 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S. C. § 636(b)(1)(B). Within twenty 15 days after being served with these findings and recommendations, plaintiff may file written 16 17 objections with the Court. Such a document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 19 within the specified time waives all objections to the judge’s findings of fact. See Turner v. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time 21 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 22 23 1991). 24 25 IT IS SO ORDERED. 26 27 28 Dated: /s/ Gary S. Austin 2 February 18, 2015 1 2 UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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