(PC) Samuel Archuleta v. Founlong et al, No. 1:2018cv00693 - Document 14 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS That This Case be Dismissed With Prejudice for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 2/12/19. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL ARCHULETA, 12 13 14 15 16 Plaintiff, vs. K. FOUNLONG, et al., Defendants. 1:18-cv-00693-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 12.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 17 Samuel Archuleta (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On May 21, 2018, Plaintiff 19 filed the Complaint commencing this action. (ECF No. 18.) On December 6, 2018, the court 20 issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF 21 No. 10.) On December 17, 2018, Plaintiff filed the First Amended Complaint. (ECF No. 11.) 22 Plaintiff’s First Amended Complaint was not signed, and Plaintiff did not request any 23 relief therein. On December 17, 2018, the court issued an order striking the First Amended 24 Complaint and ordering Plaintiff to file a Second Amended Complaint that includes a request 25 for relief and which bears Plaintiff’s original signature, within thirty days. (ECF No. 12.) The 26 thirty-day time period has expired and Plaintiff has not filed a Second Amended Complaint or 27 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; and This dismissal be subject to the “three strikes” provision of 28 U.S.C. § 1915(g). 5 2. 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). 8 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 9 may file written objections with the court. Such a document should be captioned “Objections 10 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). Within 14 15 16 17 IT IS SO ORDERED. Dated: February 12, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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