Calihan v. Crounse et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
D. CROUNSE, et al.,
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
Kenny Calihan (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. § 1983. On February 1, 2017, Plaintiff filed
the Complaint commencing this action. (ECF No. 1.)
On September 25, 2017, the court issued an order dismissing Plaintiff’s Complaint for
violation of Rule 8 and failure to state a claim, with leave to file an amended complaint within
thirty days. (ECF No. 8.) The thirty-day deadline has now expired and Plaintiff has not filed
an amended complaint or otherwise responded to the court’s order.1 As a result, there is no
pleading on file which sets forth any claims upon which relief may be granted.
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
Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A
and 28 U.S.C. § 1915(e), this case be DISMISSED, with prejudice, based on Plaintiff’s failure
to state a claim upon which relief may be granted under § 1983.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l).
fourteen (14) days from the date of service of these findings and recommendations, Plaintiff
may file written objections with the court. Such a document should be captioned “Objections
to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991)).
IT IS SO ORDERED.
November 8, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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