Calihan v. Crounse et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this Case be DISMISSED, With Prejudice, for Failure to State a Claim re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 11/8/2017. 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 KENNY CALIHAN, 12 Plaintiff, 13 14 vs. D. CROUNSE, et al., 15 Defendants. 16 1:17-cv-00139-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 18 Kenny Calihan (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. On February 1, 2017, Plaintiff filed 20 the Complaint commencing this action. (ECF No. 1.) 21 On September 25, 2017, the court issued an order dismissing Plaintiff’s Complaint for 22 violation of Rule 8 and failure to state a claim, with leave to file an amended complaint within 23 thirty days. (ECF No. 8.) The thirty-day deadline has now expired and Plaintiff has not filed 24 an amended complaint or otherwise responded to the court’s order.1 As a result, there is no 25 pleading on file which sets forth any claims upon which relief may be granted. 26 27 28 1 The United States Postal Service returned the order on October 2, 2017, as undeliverable. A notation on the envelope indicates that Plaintiff was paroled on August 18, 2017. However, Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party=s prior address is fully effective. Local Rule 182(f). 1 1 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A 2 and 28 U.S.C. § 1915(e), this case be DISMISSED, with prejudice, based on Plaintiff’s failure 3 to state a claim upon which relief may be granted under § 1983. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 6 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 7 may file written objections with the court. Such a document should be captioned “Objections 8 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 10 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 11 (9th Cir. 1991)). Within 12 13 14 15 IT IS SO ORDERED. Dated: November 8, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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