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Morale v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

VICTOR MORALE, PLAINTIFF,
v.
JAMES A. YATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING ACTION FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO STATE A CLAIM (Doc. 12)

Plaintiff Victor Morale ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.

On November 4, 2008, the Magistrate Judge filed a Findings and Recommendations herein which was served on plaintiff and which contained notice to plaintiff that any objection to the Findings and Recommendations was to be filed within fifteen days. Plaintiff did not file a timely Objection to the Findings and Recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. The court found that the original complaint did not state a claim, and the court gave Plaintiff notice of the complaint's pleading deficiencies and an opportunity to amend. See Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (if court determines that complaint fails to state claim, leave to amend may be granted to extent that complaint's deficiencies can be cured); 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). Plaintiff failed to comply with the court's order to file an amended complaint. Thus, this action is subject to dismissal for Plaintiff's failure to state a claim and failure to comply with the court's order that he file an amended complaint.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed November 4, 2008, is adopted in full; and

2. This action is dismissed, with prejudice, for failure to obey a court order and failure to state a claim upon which relief may be granted.

IT IS SO ORDERED.

20081215

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