Opinion
NO. CV-05-0414-MWL.
October 2, 2006
REPORT AND RECOMMENDATION TO DISMISS COMPLAINT WITH PREJUDICE
By Order filed March 13, 2006, the court advised Plaintiff of the deficiencies of his complaint and directed him to amend or voluntarily dismiss within sixty ("60") days. (Ct. Rec. 17). The Court then granted Plaintiff an extension of time to comply with the Court's directives and twice directed Plaintiff to show cause why this action should not be dismissed for failure to state a claim upon which relief may be granted. Plaintiff did not respond.
Plaintiff initiated this action while a prisoner at the Airway Heights Correction Center. He notified the Court he was at the Florence Corrections Center in Florence, Arizona, as of August 1, 2006. He has not complied with the Court's directives and has filed nothing further in this action.
In his complaint, Plaintiff failed to assert facts from which the Court could infer named Defendants personally participated in a violation of his constitutionally protected rights. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Because Plaintiff failed to avail himself of the opportunity to amend his complaint or to voluntarily dismiss this action, IT IS RECOMMENDED the complaint be DISMISSED with prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). IT IS FURTHER RECOMMENDED this count as one of the dismissals under 28 U.S.C. § 1915(g).
OBJECTIONS
Any party may object to a magistrate judge's proposed findings, recommendations or report within ten ("10") days following service with a copy thereof. Such party shall file with the District Court Executive all written objections, specifically identifying the portions to which objection is being made, and the basis therefor. Attention is directed to Fed.R.Civ.P. 6(e), which adds another three (3) days from the date of mailing if service is by mail.
A district judge will make a de novo determination of those portions to which objection is made and may accept, reject, or modify the magistrate judge's determination. The district judge need not conduct a new hearing or hear arguments and may consider the magistrate judge's record and make an independent determination thereon. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1)(B) and (C), Fed.R.Civ.P. 73, and LMR 4, Local Rules for the Eastern District of Washington. A magistrate judge's recommendation cannot be appealed to a court of appeals; only the district judge's order or judgment can be appealed.
The District Court Executive is directed to enter this Report and Recommendation and forward copies to Plaintiff and to the referring judge.