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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONTE WEATHERINGTON, 12 Plaintiff, 13 vs. 14 S. RIOS, et al., 15 16 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 17 18 Monte Weatherington (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this 20 action on June 12, 2014. (ECF No. 1.) The court screened the Complaint and issued an order 21 on March 16, 2015, requiring Plaintiff to either file an amended complaint or notify the court 22 that he is willing to proceed with the claims found cognizable by the court. (ECF No. 7.) On 23 June 1, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 13.) 24 On April 27, 2016, the court dismissed the First Amended Complaint for failure to state 25 a claim, with leave to amend. (ECF No. 16.) On June 6, 2016, Plaintiff filed the Second 26 Amended Complaint. (ECF No. 18.) On March 6, 2017, the court issued a screening order 27 dismissing the Second Amended Complaint for failure to state a claim, with leave to file a 28 Third Amended Complaint within thirty days. (ECF No. 22.) The thirty-day deadline has 1 1 expired, and Plaintiff has not filed a Third Amended Complaint or otherwise responded to the 2 screening order.1 As a result, there is no pleading on file which sets forth any claims upon 3 which relief may be granted. 4 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A 5 and 28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 6 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 7 subject to the Athree-strikes@ provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 8 F.3d 1090, 1098 (9th Cir. 2011). 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days after being served with these findings and recommendations, Plaintiff may file 12 written objections with the court. 13 Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991)). Such a document should be captioned “Objections to 17 18 IT IS SO ORDERED. Dated: 19 April 20, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 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). 2

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