(PC) Mootry v. Flores, et al., No. 1:2009cv01252 - Document 9 (E.D. Cal. 2010)

Court Description: {VACATED PER ORDER 14 } FINDINGS and RECOMMENDATIONS Recommending That This Action be Dismissed for Failure to State a Claim Upon Which Relief can be Granted signed by Magistrate Judge Sandra M. Snyder on 1/25/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 2/17/2010. (Bradley, A)

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(PC) Mootry v. Flores, et al. Doc. 9 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 MICHAL MOOTRY, aka ABDUL-HADI AL-MUJAHID, 7 Plaintiff, 8 9 1: 09 CV 01252 OWW YNP SMS (PC) vs. FINDINGS AND RECOMMENDATION 10 11 12 13 CAPT. FLORES, et al., Defendants. 14 15 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 17 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 18 U.S.C. § 636(b)(1). 19 By order filed December 23, 2009, the court issued an order dismissing the 20 operative complaint for failure to state a claim and directing Plaintiff to file an amended 21 complaint within thirty days. Plaintiff has not filed an amended complaint. 22 In the December 23, 2009, order the court informed Plaintiff of the deficiencies in 23 his 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 January 25, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 2

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