(PC) Dustin v. G.M. Galaza, et al, No. 1:2005cv00768 - Document 41 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sandra M. Snyder on 9/9/2009, Recommending that this Action be Dismissed for Failure to State a Claim re 26 Amended Complaint filed. Matter referred to Judge O'Neill. (Objections to F&R due by 9/29/2009) (Figueroa, O)

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(PC) Dustin v. G.M. Galaza, et al Doc. 41 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 DALE OWEN DUSTIN, Plaintiff, 7 8 1: 05 CV 00768 LJO YNP SMS (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 G. GALAZA, 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 April 9, 2009,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. On June 17, 2009, the court sent to Plaintiff a copy of the amended complaint, and 20 granted him a thirty day extension of time to file an amended complaint in compliance with the 21 April 9, 2009, order. On July 31, 2009, Plaintiff was granted a second extension of time in 22 which to file an amended complaint. Plaintiff has not filed an amended complaint. 23 In the April 9, 2009, order the court informed Plaintiff of the deficiencies in his 24 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 25 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 26 1 Dockets.Justia.com 1 court recommends dismissal of the claims made in the original complaint with prejudice for 2 failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809 3 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to 4 amend prior to dismissing for failure to state a claim). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 5 6 failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District 7 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 9 twenty days after being served with these findings and recommendations, plaintiff may file 10 written objections with the court. Such a document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 objections within the specified time waives all objections to the judge’s findings of fact. See 13 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 14 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16 17 18 IT IS SO ORDERED. 19 Dated: icido3 September 9, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 2

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