-GSA (PC) Jimenez v. Wenciker et al, No. 1:2007cv01191 - Document 46 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this 43 Action be Dismissed, with Prejudice, for Failure to State a Claim upon which Relief may be Granted signed by Magistrate Judge Gary S. Austin on 02/03/2011. Referred to Judge O'Neill; Objections to F&R due by 3/10/2011.(Flores, E)

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-GSA (PC) Jimenez v. Wenciker et al Doc. 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL A. JIMENEZ, 12 13 14 15 1:07-cv-01191-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 43.) v. R. WENCIKER, et al., Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 / 17 18 Miguel A. Jimenez (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 17, 2007, 20 against defendants O'Brien, Tate, Wenciker, and Noyce, for deliberate indifference to his serious medical 21 needs in violation of the Eighth Amendment. (Doc. 1.) On April 19, 2010, the Court issued an order 22 dismissing the claims in the Complaint against defendants O'Brien and Tate, with leave to amend. (Doc. 23 42.) The Court's order required Plaintiff to either file an amended complaint or notify the Court of his 24 willingness to proceed only against defendants Wenciker and Noyce. (Doc. 42.) On May 20, 2010, 25 Plaintiff filed the First Amended Complaint. (Doc. 43.) 26 On December 13, 2010, the undersigned dismissed Plaintiff’s First Amended Complaint for 27 failure to state a claim upon which relief may be granted and gave Plaintiff leave to file a Second 28 1 Dockets.Justia.com 1 Amended Complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc.45.) To date, 2 Plaintiff has not complied with or otherwise responded to the Court’s order. As a result, there is no 3 pleading on file which sets forth any claims upon which relief may be granted under § 1983. 4 5 Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the undersigned HEREBY RECOMMENDS that: 6 1. 7 This action be dismissed, with prejudice, based on Plaintiff’s failure to state any claims upon which relief may be granted under section 1983; and 8 2. The Clerk be DIRECTED to close this case. 9 These Findings and Recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 11 after being served with these Findings and Recommendations, Plaintiff may file written objections with 12 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: 6i0kij February 3, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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