(PC) Garcia v. Martinez et al, No. 1:2013cv01389 - Document 12 (E.D. Cal. 2013)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, with prejudice, based on Plaintiff's failure to state any claims upon which relief may be granted under section 1983; Further recommended that DISMISSAL of this action count as a strike under 28: USC 1915(g), re 1 Prisoner Civil Rights Complaint filed by George Garcia, referred to Judge O'Neill, signed by Magistrate Judge Jennifer L. Thurston on 12/30/2013. Objections to F&R due by 1/21/2014 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE GARCIA, Plaintiff, 12 13 14 15 v. G. MARTINEZ, et al., Defendants. 16 1:13-cv-01389-LJO-JLT (PC) FINDINGS AND RECOMMENDATIONS OF DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED AND TO COUNT AS A STRIKE UNDER 28 U.S.C. ' 1915(g) (Docs. 4, 6, 10) 15-DAY DEADLINE 17 18 Plaintiff, George Garcia, a state prisoner proceeding pro se and in forma pauperis, filed 19 this civil rights action pursuant to 42 U.S.C. § 1983 on August 30, 2013. On September 4, 2013, 20 the undersigned dismissed Plaintiff's Complaint for failure to state a claim upon which relief may 21 be granted and ordered Plaintiff to file an amended complaint within 21 days. 28 U.S.C. § 22 1915A; 28 U.S.C. § 1915(e). Plaintiff requested and received an extension of time to file an 23 amended complaint. To date, Plaintiff has not complied with or otherwise responded to the 24 Court's order. As a result, there is no pleading on file which sets forth any claims upon which 25 relief may be granted under section 1983. 26 27 Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the undersigned HEREBY RECOMMENDS that this action be dismissed, with prejudice, based on Plaintiff's 28 1 1 failure to state any claims upon which relief may be granted under section 1983. It is further 2 recommended that dismissal of this action count as a strike under 28 U.S.C. ' 1915(g). 3 4 5 6 7 8 9 10 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. 11 Dated: December 30, 2013 /s/ Jennifer L. Thurston 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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