Aguilar v. Holland et al

Filing 13

FINDINGS and RECOMMENDATIONS, Recommending that this Case be Dismissed, with Prejudice, for Failure to State a Claim Upon Which Relief May be Granted, signed by Magistrate Judge Gary S. Austin on 12/29/16. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BENITO AGUILAR, 12 Plaintiff, 13 vs. 14 KIM HOLLAND, et al., 15 Defendants. 1:16-cv-00114-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (ECF No. 1.) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 16 17 18 I. BACKGROUND 19 Benito Aguilar (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 25, 2016, Plaintiff 21 filed the Complaint commencing this action. (ECF No. 1.) 22 On November 14, 2016, the Court dismissed Plaintiff=s Complaint for failure to comply 23 with the Federal Rules of Civil Procedure, with leave to file an Amended Complaint within 24 thirty days. (ECF No. 12.) The thirty-day deadline has passed, and Plaintiff has not complied 25 with or otherwise responded to the Court=s order. As a result, there is no pleading on file which 26 sets forth any claims upon which relief may be granted. 27 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 28 and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 1 1 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 2 subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 3 F.3d 1090, 1098 (9th Cir. 2011). 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 6 days after being served with these findings and recommendations, Plaintiff may file written 7 objections with the court. Such a document should be captioned "Objections to Magistrate 8 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 9 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 10 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 11 1991)). 12 13 14 15 IT IS SO ORDERED. Dated: December 29, 2016 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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