(PC) Placencio v. Yates et al, No. 1:2009cv01483 - Document 7 (E.D. Cal. 2010)

Court Description: *VACATED PER ORDER 9 * FINDINGS and RECOMMENDATIONS recommending that this 1 Action be Dismissed for Failure to State a Claim upon which Relief can be Granted signed by Magistrate Judge Gary S. Austin on 2/8/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 3/3/2010. (Sant Agata, S)

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(PC) Placencio v. Yates et al Doc. 7 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 ERNEST REYES PLACENCIO, Plaintiff, 7 8 1: 09 CV 01483 AWI YNP GSA (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 JAMES YATES, et al., Defendants. 12 13 14 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 15 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 16 U.S.C. § 636(b)(1). 17 By order filed January 6, 2010, the court issued an order dismissing the operative 18 complaint for failure to state a claim and directing Plaintiff to file an amended complaint within 19 thirty days. Plaintiff has not filed an amended complaint. 20 In the January 6, 2010, order the court informed Plaintiff of the deficiencies in his 21 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 22 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 23 court recommends dismissal of the claims made in the original complaint for failure to state a 24 federal claim upon which the court could grant relief. See Noll v. Carlson, 809 F. 2d 1446, 1448 25 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to 26 1 Dockets.Justia.com 1 dismissing for failure to state a claim). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 2 3 failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District 4 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 6 twenty days after being served with these findings and recommendations, plaintiff may file 7 written objections with the court. Such a document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 objections within the specified time waives all objections to the judge’s findings of fact. See 10 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 11 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. Dated: 6i0kij February 8, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 2

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