Opinion
1:13-cv-01098-GSA-PC
10-30-2013
ERIC GOMEZ, Plaintiff, v. COUTY OF MERCED, Defendant.
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE CASE
Eric Gomez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 12, 2013. (Doc. 1.) On August 16, 2013, Plaintiff consented to the jurisdiction of a Magistrate Judge under 28 U.S.C. 636(c), and no other parties have appeared in this action. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
On September 16, 2013, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to file an amended complaint within thirty days. (Doc. 10.) 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). In the September 16, 2013, 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. To date, Plaintiff has not complied with 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.
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 claim upon which the Court could grant relief. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987)(prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim).
Accordingly, IT IS HEREBY ORDERED that:
1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is DISMISSED, with prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under § 1983;
2. This dismissal is 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); and
3. The Clerk is directed to close this case. IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE