(PC) Ball v. Yates et al, No. 1:2010cv00639 - Document 12 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 7/14/2011 recommending that 1 Prisoner Civil Rights Complaint filed by Tory Ball be DISMISSED with prejudice. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/8/2011. (Lundstrom, T)

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(PC) Ball v. Yates et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TORY BALL, 12 Plaintiff, 13 14 Case No. 1:10-cv-00639 LJO JLT (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM vs. JAMES YATES, et al., (Doc. 9) 15 Defendants. 16 / 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. By order filed April 29, 2011, the Court screened Plaintiff’s complaint 19 and dismissed it with leave to amend. (Doc. 9.) The Court found that: (1) Plaintiff’s allegations against 20 Defendants Yates, Carr, and Mendez were insufficient to impose liability on these supervisory prison 21 officials under § 1983; (2) Plaintiff’s allegations against Defendant Nelson were insufficient to show 22 deliberate indifference under the Eighth Amendment; and (3) Plaintiff’s official capacity claims, which 23 seek only monetary damages, are barred by the Eleventh Amendment. (Id. at 5-6.) 24 On May 27, 2011, Plaintiff filed a motion for an extension of time to file an amended complaint 25 in accordance with the Court’s April 29, 2011 order. (Doc. 10.) In response, the Court granted Plaintiff 26 thirty additional days to file an amended complaint. (Doc. 11.) Nevertheless, the thirty-day period has 27 since expired, and Plaintiff has not filed an amended complaint or otherwise responded to the Court’s 28 orders. 1 Dockets.Justia.com 1 Accordingly, for the reasons set forth in the Court’s April 29, 2011 screening order and because 2 Plaintiff has failed to file an amended complaint that corrects the deficiencies identified in his pleadings, 3 it is HEREBY RECOMMENDED that: 4 1. This action be DISMISSED WITH PREJUDICE for failure to state a claim; 5 2. This dismissal count as a strike pursuant to 28 U.S.C. § 1915(g); and 6 3. This case be closed. 7 These findings and recommendations are submitted to the United States District Judge assigned 8 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after being 9 served with these findings and recommendations, Plaintiff may file written objections with the Court. 10 The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 11 Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal 12 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: July 14, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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