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