Montalvo v. CDCR Personnel

Filing 14

FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, with Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 11/29/17. Referred to Judge Drozd. Objections if any, Due in Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONFESSOR MONTALVO,

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Plaintiff,
vs.
CDCR PERSONNEL,
Defendants.

1:16-cv-01078-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(ECF No. 11.)
OBJECTIONS, IF ANY, DUE IN
FOURTEEN (14) DAYS

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Confessor Montalvo (“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 July 26, 2016. (ECF No. 1.)

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On March 27, 2017, the court screened the Complaint under 28 U.S.C. § 1915A and

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issued an order severing and transferring some of Plaintiff’s claims for lack of venue, (ECF No.

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9), and an order dismissing the Complaint for violation of Rule 8(a), with leave to amend, (ECF

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No. 10.) On April 17, 2017, Plaintiff filed the First Amended Complaint. (ECF No. 11.)

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On October 5, 2017, the court dismissed the First Amended Complaint for failure to

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state a claim, with leave to file a Second Amended Complaint within thirty days. (ECF No.

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11.) The thirty-day deadline has now expired and Plaintiff has not filed a Second Amended

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Complaint, or otherwise responded to the court’s order. As a result, there is now no pleading

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on file which sets forth any claims upon which relief may be granted.
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Accordingly, IT IS HEREBY RECOMMENDED that:

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Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be

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DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon

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which relief may be granted under § 1983; and

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2.

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These findings and recommendations are submitted to the United States District Judge

The Clerk be directed to close this case.

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l).

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fourteen (14) days from the date of service of these findings and recommendations, Plaintiff

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may file written objections with the court. Such a document should be captioned “Objections

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to 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)).

Within

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IT IS SO ORDERED.
Dated:

November 29, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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