Opinion
1:12-cv-00454-LJO-GSA-PC
05-01-2015
DONNY WHITE, Plaintiff, v. J. WALKER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
(Doc. 1.)
OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Donny White ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed the Complaint commencing this civil rights action pursuant to 42 U.S.C. § 1983 on March 26, 2012. (Doc. 1.) On March 17, 2015, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to amend within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc. 9.) On April 16, 2015, Plaintiff filed a notice of intent not to file an amended complaint. (Doc. 10.) Plaintiff states in the notice that he "intend[s] to stand on his complaint rather than amend it and to appeal any order dismissing the complaint and/or action which may result." (Id.) The deadline to amend the Complaint has expired, and Plaintiff has not filed an amended complaint. As a result, there is no pleading on file which sets forth any claims upon which relief may be granted.
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 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, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: May 1 , 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE