Opinion
1:14-cv-01072-DAD-EPG-PC
05-06-2016
CHRISTOPHER CONDEE, Plaintiff, v. C/O CASTILLO, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 11.) OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS
Christopher Condee ("Plaintiff") is a jail inmate proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 9, 2014. (ECF No. 1.) On February 12, 2015, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 10.) On March 5, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 11.)
On March 30, 2016, the Court screened the First Amended Complaint and found that it fails to state a claim as to any defendant. (ECF No. 14.) The Court issued an order requiring Plaintiff to either file a Second Amended Complaint or notify the Court that he stands on the First Amended Complaint as filed, subject to recommendation of dismissal, within thirty days. (Id.) The thirty-day period has now expired, and Plaintiff has not filed a Second Amended Complaint, notified the Court that he stands on the First Amended Complaint, or otherwise responded to the Court's order. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted.
The United States Postal Service returned the Court's order on April 20, 2016 as undeliverable. A notation on the envelope indicates "Undeliverable, Released." However, 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). --------
Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under section 1983, and that this dismissal be subject to the "three-strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).
These findings and recommendations are 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 thirty (30) days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Such a 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: May 6 , 2016
/s/ _________
UNITED STATES MAGISTRATE JUDGE