(PC) Carter v. Director of the Department of Corrections et al, No. 1:2007cv00232 - Document 33 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 11/10/2009. IT IS HEREBY RECOMMENDED That This Action be DISMISSED for Failure to State a Claim Upon Which Relief can be Granted. Referred to Judge Oliver W. Wanger. Objections to F&R due by 12/3/2009. (Bradley, A)

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(PC) Carter v. Director of the Department of Corrections et al Doc. 33 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 BRAIN CARTER, Plaintiff, 7 8 1: 07 CV 00232 OWW YNP SMS (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 W. SULLIVAN, 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 October 5, 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. Plaintiff has not filed an amended complaint. 20 In the October 5, 2009, 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 with prejudice for 24 failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809 25 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to 26 1 Dockets.Justia.com 1 amend prior to 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 15 IT IS SO ORDERED. 16 Dated: icido3 November 10, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 2

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