(PC) Avery v. Hubbard et al, No. 1:2009cv00321 - Document 17 (E.D. Cal. 2009)

Court Description: {VACATED PURSUANT TO ORDER 20 } FINDINGS and RECOMMENDATIONS recommending Dismissal of 1 Action, With Prejudice, for Failure to State a Claim upon which Relief may be Granted; Objections due within Twenty Days signed by Magistrate Judge Dennis L. Beck on 8/31/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 9/24/2009. (Sant Agata, S).

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(PC) Avery v. Hubbard et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHANNON LEWIS AVERY, SR, 10 11 12 13 CASE NO. 1:09-cv-00321-LJO DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED v. SUZAN L. HUBBARD, et al., Defendants. (Doc. 16) 14 OBJECTIONS DUE WITHIN TWENTY DAYS / 15 16 Plaintiff Shannon Lewis Avery Sr. is a state prisoner proceeding pro se and in forma pauperis 17 in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 7, 2009. 18 On June 22, 2009, the undersigned dismissed Plaintiff’s complaint for failure to state a claim upon 19 which relief may be granted and ordered Plaintiff to file an amended complaint within thirty days. 20 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). To date, Plaintiff has not complied with or otherwise 21 responded to the Court’s order. As a result, there is no pleading on file which sets forth any claims 22 upon which relief may be granted under section 1983. 23 Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the undersigned 24 HEREBY RECOMMENDS that this action be dismissed, with prejudice, based on Plaintiff’s failure 25 to state any claims upon which relief may be granted under section 1983. 26 These Findings and Recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) 28 days after being served with these Findings and Recommendations, Plaintiff may file written 1 Dockets.Justia.com 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 4 1153 (9th Cir. 1991). 5 6 7 IT IS SO ORDERED. Dated: 3b142a August 31, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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