(PC) Gudino v. Adams, et al., No. 1:2005cv00954 - Document 31 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Action For Failure To State A Claim, OBJECTIONS Due Within 30 Days, signed by Magistrate Judge Sheila K. Oberto on 5/22/2010. It is RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted 13 . F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 6/28/2010.(Scrivner, E)

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(PC) Gudino v. Adams, et al. Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SABINO NUNEZ GUDINO, 10 Plaintiff, 11 12 CASE NO. 1:05-cv-00954-LJO-SKO PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM v. B.C. ADAMS, et al., 13 OBJECTIONS DUE WITHIN 30 DAYS Defendants. / 14 15 Plaintiff Sabino Nunez Gudino (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 25, 2010, the Court 17 screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A and found that 18 Plaintiff’s first amended complaint failed to state a claim upon which relief can be granted under 19 Section 1983. (Doc. #18.) Plaintiff was informed of the deficiencies in his claims and was directed 20 to file a second amended complaint. Plaintiff received numerous extensions of time to file his 21 second amended complaint -- the latest in an April 5, 2010 order extending the deadline to thirty (30) 22 days after the date of service of the April 5, 2010 order. Plaintiff has not filed an amended complaint 23 and has not requested any further extension of time. 24 Because Plaintiff has not filed an amended complaint, the Court will recommend dismissal 25 of this action with prejudice for failure to state a claim upon which relief can be granted. See Ferdik 26 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had 27 instructed plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). 28 /// 1 Dockets.Justia.com 1 2 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. 3 These Findings and Recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 5 days after being served with these Findings and Recommendations, any party may file written 6 objections with the Court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 8 shall be served and filed within ten (10) days after service of the objections. The parties are advised 9 that failure to file objections within the specified time may waive the right to appeal the District 10 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj May 22, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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