(PC) Huff v. Sherman et al, No. 1:2016cv01117 - Document 18 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, with Prejudice, for Failure to State a Claim; Objections, if any, Due in Fourteen (14) Days signed by Magistrate Judge Gary S. Austin on 4/2/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due in Fourteen (14) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERICK HUFF, 12 13 14 15 16 Plaintiff, vs. WARDEN SHERMAN, et al., Defendants. 1:16-cv-01117-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED. WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 15.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 17 18 19 20 Erick Huff (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 21 this civil rights action pursuant to 42 U.S.C. § 1983. On August 2, 2016, Plaintiff filed the 22 Complaint commencing this action. (ECF No. 1.) On August 28, 2017, Plaintiff filed the First 23 Amended Complaint as a matter of course. Fed. R. Civ. P. 15(a). (ECF No. 15.) 24 On February 12, 2018, the court issued an order dismissing Plaintiff’s Complaint for 25 failure to state a claim, with leave to file an amended complaint within thirty days. (ECF No. 26 16.) The thirty-day deadline has now expired, and Plaintiff has not filed an amended complaint 27 or otherwise responded to the court’s order. As a result, there is no pleading on file which sets 28 forth any claims upon which relief may be granted. 1 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this case be 3 DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon 4 which relief may be granted under § 1983; 5 2. 6 This dismissal be subject to the “three strikes” provision of 28 U.S.C. § 1915(g); and 7 3. 8 These findings and recommendations are submitted to the United States District Judge 9 The Clerk be directed to close this case. assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 10 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 11 may file written objections with the court. Such a document should be captioned “Objections 12 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 14 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 15 (9th Cir. 1991)). 16 17 18 19 IT IS SO ORDERED. Dated: April 2, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2