-GBC (PC) Hewitt v. State of California et al, No. 1:2009cv00661 - Document 29 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Plaintiff's 22 Action with Prejudice for Failure to State a Claim; Objections Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 10/3/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/7/2011. (Sant Agata, S)

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-GBC (PC) Hewitt v. State of California et al Doc. 29 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWARD HEWITT, 11 CASE NO. 13 STATE OF CALIFORNIA, et al., FINDINGS AND RECOMMENDATION RE COMME NDING D I S M I S S A L O F PLAINTIFF’S ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM 14 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 12 Plaintiff, 1:09-cv-00661-AWI-GBC (PC) v. / 15 16 FINDINGS AND RECOMMENDATION 17 18 19 Plaintiff Edward Hewitt (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 25, 2011, 20 the Court dismissed Plaintiff’s Second Amended Complaint, with leave to amend, for failure 21 to state a claim. (ECF No. 23.) Plaintiff was ordered to file an amended complaint within 22 thirty days. (Id.) Plaintiff also was warned that failure to comply with the Court’s Order may 23 result in dismissal of this action for failure to state a claim upon which relief could be 24 25 26 27 granted. (Id.) On August 22, 2011, the Court issued a Show Cause Order. (ECF No. 27.) The Show Cause Order again warned Plaintiff that the case would be dismissed if Plaintiff Dockets.Justia.com 1 2 3 failed to respond to the Order and/or file an amended complaint by September 26, 2011. (Id.) To date, the Court has not received a response to the Show Cause Order and Plaintiff has not filed an amended complaint. As a result, there is no pleading on file which sets 4 5 forth any claims upon which relief may be granted. Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the Court 6 7 HEREBY RECOMMENDS that this action be DISMISSED, with prejudice, based on 8 Plaintiff’s failure to state any claims upon which relief may be granted under Section 1983. 9 These Findings and Recommendation will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 11 12 13 thirty (30) days after being served with these Findings and Recommendation, the parties may file written objections with the Court. The document should be captioned “Objections 14 to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure 15 to file objections within the specified time may waive the right to appeal the District Court’s 16 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 19 20 21 22 23 24 25 26 27 Dated: 1j0bbc October 3, 2011 UNITED STATES MAGISTRATE JUDGE

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