(PC) Antonio Candelario v. Mumahmen et al, No. 1:2009cv00366 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sandra M. Snyder on 2/5/2010, Recommending that this re 1 Action be Dismissed for Failure to State a Claim Upon Which Relief can be Granted. Matter referred to Judge Ishii, (Objections to F&R due by 3/2/2010)(Figueroa, O)

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(PC) Antonio Candelario v. Mumahmen et al Doc. 18 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 ANTONIO CANDELARIO, Plaintiff, 7 8 1: 09 CV 00366 AWI YNP SMS (PC) vs. FINDINGS AND RECOMMENDATION 9 10 11 T. NGUYEN, 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 June 18, 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 been granted a motion for extension of time in which to comply. 20 Plaintiff was re-served with the order granting an extension of time at his new address on 21 December 28, 2009. Plaintiff has not filed an amended complaint. 22 In the June 18, 2009, order the court informed Plaintiff of the deficiencies in his 23 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 24 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 25 court recommends dismissal of the claims made in the original complaint with prejudice for 26 1 Dockets.Justia.com 1 failure to state a federal claim upon which the court could grant relief. See Noll v. Carlson, 809 2 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to 3 amend prior to dismissing for failure to state a claim). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 4 5 failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District 6 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 8 twenty days after being served with these findings and recommendations, plaintiff may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time waives all objections to the judge’s findings of fact. See 12 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 13 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 14 F.2d 1153 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. 18 Dated: icido3 February 5, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 2

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