(PC) Avery v. Director of CDCR, et al., No. 1:2007cv01175 - Document 57 (E.D. Cal. 2009)

Court Description: **VACATED Pursuant to 61 Order** FINDINGS and RECOMMENDATIONS recommending that this 2 action be dismissed for failure to state a claim upon which relief can be granted signed by Magistrate Judge Gary S. Austin on 09/10/2009. Referred to Judge Wanger; Objections to F&R due by 10/5/2009. (Flores, E)

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(PC) Avery v. Director of CDCR, et al. Doc. 57 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 SHANNON LEWIS AVERY, Plaintiff, 7 8 1: 07 CV 01175 OWW YNP GSA (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 G. GONZALES, 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 May 1, 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 been granted three extensions of time in which to file an amended 20 complaint. Plaintiff has not filed an amended complaint. 21 In the May 1, 2009, order the court informed Plaintiff of the deficiencies in his 22 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 23 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 24 court recommends dismissal of the claims made in the original complaint with prejudice for 25 failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809 26 1 Dockets.Justia.com 1 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to 2 amend prior to dismissing for failure to state a claim). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 3 4 failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District 5 6 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 7 twenty days after being served with these findings and recommendations, plaintiff may file 8 written objections with the court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 objections within the specified time waives all objections to the judge’s findings of fact. See 11 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 12 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 13 F.2d 1153 (9th Cir. 1991). 14 15 16 IT IS SO ORDERED. Dated: 6i0kij September 10, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 2

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