(PC) Fuller v. Yates et al, No. 1:2008cv00465 - Document 17 (E.D. Cal. 2009)

Court Description: {VACATED PER ORDER 19 } FINDINGS and RECOMMENDATIONS Recommending that This Action be Dismissed, With Prejudice, for Failure to State a Claim Upon Which Relief may be Granted re 14 ; Objections, if any, due Within Thirty Days signed by Magistrate Judge Gary S. Austin on 11/5/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/8/2009. (Bradley, A)

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(PC) Fuller v. Yates et al Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KELVIN FULLER, 12 13 14 1:08-cv-00465-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 14.) v. YATES, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 / 17 18 Plaintiff Kelvin Fuller (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on December 17, 2007, at 20 the Fresno County Superior Court. On April 1, 2008, defendants Yates and Igbanosa removed 21 this action to federal court. (Doc. 3.) On April 23, 2009, plaintiff filed a first amended 22 complaint. (Doc. 14.) 23 On September 9, 2009, the undersigned dismissed Plaintiff’s first amended complaint for 24 failure to state a claim upon which relief may be granted and gave Plaintiff leave to file a second 25 amended complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc.16.) 26 More than forty-five days have passed, and Plaintiff has not filed a second amended complaint or 27 otherwise responded to the Court’s order. As a result, there is no pleading on file which sets 28 forth any claims upon which relief may be granted under section 1983. 1 Dockets.Justia.com 1 2 3 Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the undersigned HEREBY RECOMMENDS that: 1. 4 This action be dismissed, with prejudice, based on Plaintiff’s failure to state any claims upon which relief may be granted under section 1983; and 5 2. The Clerk be DIRECTED to close this case. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 thirty (30) days after being served with these Findings and Recommendations, any party to this 9 action may file written objections with the Court. The document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 11 failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: 6i0kij November 5, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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