(PC) Brown v. Clark et al, No. 1:2010cv00009 - Document 10 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for failure to state a claim upon which relief can be granted; re 1 Prisoner Civil Rights Complaint filed by Andre J. Brown ; referred to Judge O'Neill; Objections to F&R due by 2/14/2011, signed by Magistrate Judge Gary S. Austin on 01/19/2011. (Martin, S)

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(PC) Brown v. Clark et al Doc. 10 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 ANDRE J. BROWN, ) ) Plaintiff, ) ) v. ) ) KEN CLARK, et al., ) ) Defendants. ) ____________________________________) NO. 1:10-cv-00009-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED OBJECTIONS DUE IN TWENTY DAYS 16 17 Plaintiff is a former state prisoner proceeding pro se in this civil rights action. The 18 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 19 Local Rule 302. 20 By order filed December 13, 2010, the Court issued an order dismissing the operative 21 complaint for failure to state a claim and directing Plaintiff to file an amended complaint within 22 thirty days. Plaintiff has not filed an amended complaint. 23 In the December 13, 2010, order the Court informed Plaintiff of the deficiencies in his 24 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 25 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 26 Court will recommend that Plaintiff’s complaint be dismissed without leave to amend. See 27 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2007) (recognizing longstanding rule that leave to 28 Dockets.Justia.com 1 amend should be granted even if no request to amend was made unless the court determines that 2 the pleading could not possibly be cured by the allegation of other facts); Noll v. Carlson, 809 3 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given leave to amend his or her 4 complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by 5 amendment). See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with 6 prejudice upheld where court had instructed plaintiff regarding deficiencies in prior order 7 dismissing claim with leave to amend). 8 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 12 twenty days after being served with these findings and recommendations, plaintiff may file 13 written objections with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time waives all objections to the judge’s findings of fact. See 16 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 17 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 20 21 22 23 24 IT IS SO ORDERED. Dated: 6i0kij January 19, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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