(PC) Cranford v. King et al, No. 1:2015cv00024 - Document 11 (E.D. Cal. 2015)

Court Description: 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 (Doc. 1 ), signed by Magistrate Judge Gary S. Austin on 7/6/2015. F&R's referred to Judge Anthony W. Ishii;Objections to F&R due by 7/29/2015.(Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 1:15-cv-00024 AWI GSA PC ARCHIE CRANFORD, 12 Plaintiff, 13 vs. 14 FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED A. KING, et al., 15 Defendants. OBJECTIONS DUE IN TWENTY DAYS 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Screening Requirement Plaintiff is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. By order filed May 27, 2015, the Court issued an order dismissing the operative complaint for failure to state a claim and directing Plaintiff to file an amended complaint within thirty days. Plaintiff has not filed an amended complaint. In the May 27, 2015, order, the Court informed Plaintiff of the deficiencies in his complaint, and dismissed the complaint on the ground that Plaintiff had failed to state a claim upon which relief could be granted. Because Plaintiff has not filed an amended complaint, the Court dismisses the claims made in the original complaint with prejudice for failure to state a 1 1 claim upon which the Court could grant relief. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th 2 Cir. 2007)(recognizing longstanding rule that leave to amend should be granted even if no 3 request to amend was made unless the court determines that the pleading could not possible be 4 cured by the allegation of other facts); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)(pro 5 se litigant must be given leave to amend his or her complaint unless it is absolutely clear that 6 the deficiencies of the complaint could not be cured by amendment). See Ferdik v. Bonzelet, 7 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with prejudice upheld where court had instructed 8 plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). 9 10 11 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within twenty 13 days after being served with these findings and recommendations, Plaintiff may file written 14 objections with the Court. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 16 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 17 772 F.3d 834 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1394(9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: July 6, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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