(PC)Lee v. Harrington, No. 1:2009cv01559 - Document 13 (E.D. Cal. 2011)

Court Description: ORDER Adopting 12 Findings and Recommendations Dismissing Action with Prejudice, For Failure to State A Claim, signed by District Judge Lawrence J. O'Neill on 5/13/11. Clerk to Close Case. CASE CLOSED. (Gonzalez, R)
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(PC)Lee v. Harrington Doc. 13 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JERMAINE LEE, 7 1:09-cv-01559-LJO-GBC (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RE COMMENDAT I O NS DIS MI S S I NG ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM Defendant. (ECF No. 12) v. 8 9 CASE NO. K. HARRINGTON, 10 11 / CLERK TO CLOSE CASE 12 13 14 ORDER 15 16 Plaintiff Jermaine Lee (“Plaintiff”), a state inmate, is proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred 18 to a United State Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. 20 This action was filed on September 3, 2009. (ECF No. 1.) Plaintiff’s original 21 22 complaint was dismissed with leave to amend on January 6, 2011. (ECF No. 11.) Plaintiff 23 was given thirty days to file an amended complaint and was warned that failure to do so 24 would result in dismissal of this action. (Id.) Plaintiff did not file anything. 25 26 On February 25, 2011, the Magistrate Judge recommended dismissal of action for failure to state a claim upon which relief may be granted. (ECF No. 12.) The Magistrate 27 1 Dockets.Justia.com 1 2 3 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 Findings and Recommendations. Well over thirty days passed and, to date, Plaintiff has failed to file an objection or otherwise respond. 4 5 6 As a result, there is no pleading on file which sets forth any claims upon which relief may be granted. 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local rule 305, 8 this Court has conducted a de novo review of this case. Having carefully reviewed the 9 entire file, the Court finds the Findings and Recommendations to be supported by the 10 record and by proper analysis. Because Plaintiff never filed an amended complaint, this 11 12 13 14 action is subject to dismissal for Plaintiff’s failure to state a claim, as set forth in the Court’s January 6, 2011 Order, and also subject to dismissal for Plaintiff’s failure to comply with that same Order. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The Findings and Recommendations, filed February 25, 2011, is ADOPTED; 2. The instant action is DISMISSED WITH PREJUDICE for failure to state a 17 18 claim and failure to comply with a Court Order; 19 3. 21 The Clerk of the Court is DIRECTED to close the case; and 4. 20 This case shall count as a strike for purposes of 28 U.S.C. § 1915(g). 22 IT IS SO ORDERED. 23 Dated: b9ed48 24 May 13, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 25 26 27 2