Weatherington v. Rios et al

Filing 23

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED With Prejudice Based on Plaintiff's Failure to State a Claim Upon Which Relief May Be Granted Under Section 1983 re 18 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 4/20/2017. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONTE WEATHERINGTON,

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Plaintiff,

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vs.

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S. RIOS, et al.,

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Defendants.

1:14-cv-00906-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED FOR FAILURE TO STATE A
CLAIM, WITH PREJUDICE
(ECF No. 18.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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Monte Weatherington (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this

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action on June 12, 2014. (ECF No. 1.) The court screened the Complaint and issued an order

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on March 16, 2015, requiring Plaintiff to either file an amended complaint or notify the court

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that he is willing to proceed with the claims found cognizable by the court. (ECF No. 7.) On

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June 1, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 13.)

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On April 27, 2016, the court dismissed the First Amended Complaint for failure to state

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a claim, with leave to amend. (ECF No. 16.) On June 6, 2016, Plaintiff filed the Second

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Amended Complaint. (ECF No. 18.) On March 6, 2017, the court issued a screening order

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dismissing the Second Amended Complaint for failure to state a claim, with leave to file a

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Third Amended Complaint within thirty days. (ECF No. 22.) The thirty-day deadline has
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expired, and Plaintiff has not filed a Third Amended Complaint or otherwise responded to the

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screening order.1 As a result, there is no pleading on file which sets forth any claims upon

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which relief may be granted.

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Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A

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and 28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure

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to state a claim upon which relief may be granted under section 1983, and that this dismissal be

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subject to the Athree-strikes@ provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658

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F.3d 1090, 1098 (9th Cir. 2011).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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

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written objections with the court.

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Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

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April 20, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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The United States Postal Service returned the order on March 15, 2017, as undeliverable. A notation on the
envelope indicates “RTS-Paroled/Discharged. However, 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).
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