(PC) Lanear v. Cate et al, No. 1:2011cv02086 - Document 11 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS that this 1 Action be Dismissed for Failre to State a Claim upon Which Relief Could be Granted signed by Magistrate Judge Gary S. Austin on 08/08/2012. Referred to Judge O'Neill; Objections to F&R due by 8/31/2012. (Flores, E)
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(PC) Lanear v. Cate et al Doc. 11 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 FRANK LANEAR, ) ) Plaintiff, ) ) v. ) ) MATTHEW CATE, et al., ) ) Defendants. ) ____________________________________) 15 NO. 1:11-cv-02086 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 state prisoner proceeding pro se in this civil rights action. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. 20 By order filed May 25, 2012, 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 was granted a thirty day extension of time on Jue 29, 2012. To date, 23 Plaintiff has not filed an amended complaint. 24 In the May 25, 2012, order the Court informed Plaintiff of the deficiencies in his 25 complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim 26 upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the 27 Court will recommend that Plaintiff’s complaint be dismissed without leave to amend. See 28 Dockets.Justia.com 1 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2007) (recognizing longstanding rule that leave to 2 amend should be granted even if no request to amend was made unless the court determines that 3 the pleading could not possibly be cured by the allegation of other facts); Noll v. Carlson, 809 4 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant must be given leave to amend his or her 5 complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by 6 amendment). See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with 7 prejudice upheld where court had instructed plaintiff regarding deficiencies in prior order 8 dismissing claim with leave to amend). 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure 10 to state a claim upon which relief can be granted, and that this action count as a strike under 28 11 U.S.C. § 1915(g). 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within 14 twenty days after being served with these findings and recommendations, plaintiff may file 15 written objections with the court. Such a document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 17 objections within the specified time waives all objections to the judge’s findings of fact. See 18 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the 19 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 22 23 24 25 IT IS SO ORDERED. 26 Dated: 6i0kij August 8, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 2
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