Luster v. Amezcua et al

Filing 23

FINDINGS and RECOMMENDATIONS recommending that pursuant to 28:1915A and 28:1915(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 dismiss al be subject to the "three-strikes" provision re 20 Amended Prisoner Civil Rights Complaint filed by Daphnye S. Luster ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 05/22/18. Objections to F&R due by 6/8/2018(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAPHNYE S. LUSTER,

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Plaintiff,
vs.
RAUL H. AMEZCUA, et al.,
Defendants.

1:16-cv-00554-LJO-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. 20.)
OBJECTIONS, IF ANY, DUE IN
FOURTEEN (14) DAYS

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Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on April 4, 2016, at the United States District Court for the Northern

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District of California. (ECF No. 1.) On April 18, 2016, the case was transferred to the Eastern

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District of California. (ECF No. 5.)

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On February 27, 2017, the court dismissed Plaintiff’s Complaint for failure to state a

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claim, with leave to file an amended complaint. (ECF No. 14.) 28 U.S.C. § 1915A; 28 U.S.C.

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§ 1915(e). On May 22, 2017, Plaintiff filed the First Amended Complaint. (ECF No. 20.) On

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March 26, 2018, the court dismissed the First Amended Complaint for failure to state a claim,

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with leave to amend within thirty days.

(ECF No. 22.)
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The thirty-day time period for

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amending the complaint has expired, and Plaintiff has not complied with or otherwise

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responded to the court’s order. As a result, there is no pleading on file which sets forth any

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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

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failure to state a claim upon which relief may be granted under section 1983, and that this

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dismissal be subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v.

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Vittorio, 658 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 fourteen

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(14) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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

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

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(9th Cir. 1991)).

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

May 22, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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