(PC) Wilkerson v. Beard et al, No. 1:2014cv01417 - Document 53 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this 22 Action be Dismissed, with Prejudice, for Failure to State a Claim Upon which Relief may be Granted; Objections, if any, Due in Thirty Days signed by Magistrate Judge Erica P. Grosjean on 11/16/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/21/2015. (Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROGER WILKERSON, 11 12 Plaintiff, vs. 13 JEFFREY BEARD, et al., 14 Defendants. 1:14-cv-01417-LJO-EPG-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (ECF No. 22.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 15 16 17 Roger Wilkerson (“Plaintiff@) is a former state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this 19 action on July 26, 2013. (ECF No. 1.) On January 30, 2014, Plaintiff filed the First Amended 20 Complaint. (ECF No. 22.) 21 On October 1, 2015, the Court dismissed Plaintiff=s First Amended Complaint for 22 failure to state a claim, with leave to file a Second Amended Complaint within thirty days. 23 (ECF No. 51.) 28 U.S.C. ' 1915A; 28 U.S.C. ' 1915(e). To date, Plaintiff has not complied 24 with or otherwise responded to the Court=s order.1 As a result, there is no pleading on file 25 which sets forth any claims upon which relief may be granted. 26 27 28 1 On October 29, 2015, the U.S. Postmaster returned the court’s order to the court as undeliverable, with the notation “Attempted – Not Known.” (Court Record.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party=s prior address is fully effective. Local Rule 182(f). 1 1 Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 2 and 28 U.S.C. ' 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff=s failure 3 to state a claim upon which relief may be granted under section 1983, and that this dismissal be 4 subject to the Athree-strikes@ provision set forth in 28 U.S.C. ' 1915(g). Coleman v. Tollefson, 5 135 S.Ct. 1759, 1761-62, 191 L.Ed.2d 803 (2011). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 8 days after being served with these findings and recommendations, Plaintiff may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 11 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 12 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 13 1991)). 14 15 16 IT IS SO ORDERED. Dated: November 16, 2015 /s/ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2
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