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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CONFESSOR MONTALVO, 12 13 14 15 16 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 17 Confessor Montalvo (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this action on July 26, 2016. (ECF No. 1.) 20 On March 27, 2017, the court screened the Complaint under 28 U.S.C. § 1915A and 21 issued an order severing and transferring some of Plaintiff’s claims for lack of venue, (ECF No. 22 9), and an order dismissing the Complaint for violation of Rule 8(a), with leave to amend, (ECF 23 No. 10.) On April 17, 2017, Plaintiff filed the First Amended Complaint. (ECF No. 11.) 24 On October 5, 2017, the court dismissed the First Amended Complaint for failure to 25 state a claim, with leave to file a Second Amended Complaint within thirty days. (ECF No. 26 11.) The thirty-day deadline has now expired and Plaintiff has not filed a Second Amended 27 Complaint, or otherwise responded to the court’s order. As a result, there is now no pleading 28 on file which sets forth any claims upon which relief may be granted. 1 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be 3 DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon 4 which relief may be granted under § 1983; and 5 2. 6 These findings and recommendations are submitted to the United States District Judge The Clerk be directed to close this case. 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 8 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 9 may file written objections with the court. Such a document should be captioned “Objections 10 to 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)). Within 14 15 16 17 IT IS SO ORDERED. Dated: November 29, 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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