(PC) McElroy v. Schultz et al, No. 1:2008cv00179 - Document 22 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Action be Dismissed for Failure to State a Claim Upon Which Relief can be Granted signed by Magistrate Judge Gary S. Austin on 3/30/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 4/23/2010. (Bradley, A)

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(PC) McElroy v. Schultz et al Doc. 22 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 LATWAHN McELROY, Plaintiff, 7 8 1: 08 CV 00179 OWW YNP GSA (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 A. W. KAYS, 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 February 25, 2010, the court issued an order dismissing the 18 operative complaint for failure to state a claim and directing Plaintiff to file an amended 19 complaint within thirty days. Plaintiff has not filed an amended complaint. 20 In the February 25, 2010, order the court informed Plaintiff of the deficiencies in 21 his 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. Dated: 6i0kij March 30, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 2

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