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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENITO AGUILAR,

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Plaintiff,

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vs.

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KIM HOLLAND, et al.,

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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

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I.

BACKGROUND

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Benito Aguilar (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 25, 2016, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.)

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On November 14, 2016, the Court dismissed Plaintiff=s Complaint for failure to comply

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with the Federal Rules of Civil Procedure, with leave to file an Amended Complaint within

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thirty days. (ECF No. 12.) The thirty-day deadline has passed, and Plaintiff has not complied

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with or otherwise responded to the Court=s order. As a result, there is no pleading on file which

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sets forth any claims upon 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 thirty

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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

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772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.
Dated:

December 29, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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