(PC) Aquino v. Jones, No. 1:2009cv01001 - Document 17 (E.D. Cal. 2011)

Court Description: ORDER signed by District Judge Lawrence J. O'Neill on 5/13/2011 adopting 16 FINDINGS AND RECOMMENDATIONS; DISMISSING CASE with prejudice and case to count as a (Strike). CASE CLOSED. (Lundstrom, T)
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(PC) Aquino v. Jones Doc. 17 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 DORIAN M. AQUINO, CASE NO. 1:09-cv-01001-LJO-GBC (PC) 6 Plaintiff, 7 8 ORDER ADOPTING FINDINGS AND RE COMME NDAT I ONS DIS MISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM Defendant. (ECF No. 16) v. M. JONES, 9 10 / CLERK TO CLOSE CASE 11 12 13 14 15 16 ORDER Plaintiff Dorian M. Aquino (“Plaintiff”), a state inmate, is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was 17 18 19 referred to a United State Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 This action was filed on June 8, 2009. (ECF No. 1.) Plaintiff then filed a First 21 Amended Complaint on November 16, 2009. (ECF No. 12.) On December 20, 2010, the 22 Court dismissed the First Amended Complaint with leave to amend for failure to state any 23 cognizable claims. (ECF No. 15.) Plaintiff was given thirty days to file an amended 24 25 26 complaint and was warned that failure to do so would result in dismissal of this action. (Id.) Plaintiff did not file anything. On February 8, 2011, the Magistrate Judge 27 1 Dockets.Justia.com 1 2 3 recommended dismissal of action for failure to state a claim upon which relief may be granted. (ECF No. 16.) The Magistrate Judge warned Plaintiff that if he failed to comply, this action would be dismissed. Plaintiff was given thirty days to file an Objection to the 4 5 6 7 Findings and Recommendations. Well over thirty days passed and, to date, Plaintiff has failed to file an objection or otherwise respond. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local rule 305, 9 this Court has conducted a de novo review of this case. Having carefully reviewed the 10 entire file, the Court finds the Findings and Recommendations to be supported by the 11 12 13 record and by proper analysis. Because Plaintiff never filed an amended complaint, this action is subject to dismissal for Plaintiff’s failure to state a claim, as set forth in the Court’s 14 December 20, 2010 Order, and also subject to dismissal for Plaintiff’s failure to comply with 15 that same Order. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The Findings and Recommendations, filed February 8, 2011, is ADOPTED; 2. The instant action is DISMISSED WITH PREJUDICE for failure to state a 18 19 claim and failure to comply with a Court Order; 20 21 3. The Clerk of the Court is DIRECTED to close the case; and 22 4. This case shall count as a strike for purposes of 28 U.S.C. § 1915(g). 23 24 25 IT IS SO ORDERED. Dated: b9ed48 May 13, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 26 27 2