Opinion
CASE No. 1:16-cv-01305-DAD-MJS (PC)
08-07-2017
JAMISI JAMES CALLOWAY, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO STATE A CLAIM
FOURTEEN DAY OBJECTION DEADLINE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
On January 18, 2017, the Court dismissed Plaintiff's complaint with thirty days leave to amend. (ECF No. 12.) On February 6, 2017, Plaintiff filed a motion for reconsideration of the Court's screening order. (ECF No. 13.) On April 26, 2017, the District Judge assigned to the case denied the motion for reconsideration and directed Plaintiff to file his amended complaint within thirty days. (ECF No. 14.) On July 24, 2017, no amended complaint having been filed, the undersigned Ordered Plaintiff to show cause why his case should not be dismissed for failure to obey a Court order and failure to state a claim. (ECF No. 15.)
On August 4, 2017, Plaintiff responded with "objections" to the Order to show cause. (ECF No. 16.) It appears Plaintiff wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). In light of Plaintiff's election, the screening order, and the District Judge's review of the complaint on the motion for reconsideration, it is HEREBY RECOMMENDED that:
Plaintiff's complaint (ECF No. 1) be dismissed with prejudice and without leave to amend for failure to state a claim.
The findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with the findings and recommendation, Plaintiff may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." 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: August 7, 2017
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE