Luster v. Amezcua et al

Filing 15

FINDINGS and RECOMMENDATIONS recommending that This Case be DISMISSED, With Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted re 1 Complaint signed by Magistrate Judge Gary S. Austin on 4/17/2017. Referred to Judge Drozd. 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 DAPHNYE S. LUSTER, 12 13 14 15 Plaintiff, vs. RAUL H. AMEZCUA, et al., Defendants. 1:16-cv-00554-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT CASE BE DISMISSED,WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (ECF No. 14.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 16 17 18 19 Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 21 commencing this action on April 4, 2016, at the United States District Court for the Northern 22 District of California. (ECF No. 1.) On April 18, 2016, the case was transferred to the Eastern 23 District of California. (ECF No. 5.) 24 On February 27, 2017, the court dismissed Plaintiff’s Complaint for failure to state a 25 claim, with leave to file an amended complaint within thirty days. (ECF No. 14.) 28 U.S.C. § 26 1915A; 28 U.S.C. § 1915(e). To date, Plaintiff has not complied with or otherwise responded 27 to the court’s order. As a result, there is no pleading on file which sets forth any claims upon 28 which relief may be granted. 1 1 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A 2 and 28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff’s 3 failure to state a claim upon which relief may be granted under section 1983, and that this 4 dismissal be subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. 5 Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 8 (14) days after being served with these findings and recommendations, Plaintiff may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: April 17, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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