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Cruz v. Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 23, 2008

BRIAN CRUZ, PLAINTIFF,
v.
SCHWARZENEGGER, ET AL., DEFENDANTS. (DOC. 13.)

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED OBJECTIONS DUE WITHIN THIRTY DAYS

Plaintiff Brian Cruz ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 15, 2006. Before the court screened the original complaint, plaintiff filed a first amended complaint on July 11, 2006. On May 29, 2008, June 6, 2008, the undersigned dismissed plaintiff's complaint for failure to state a claim upon which relief may be granted and ordered plaintiff to file a second amended complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc. 33.) On July 1, 2008, plaintiff filed a motion for extension of time to amend the complaint, and on July 10, 2008, the court granted plaintiff a thirty day extension of time. (Docs. 34, 35.) On September 18, 2008, plaintiff filed a second motion for extension of time, and on September 29, 2008, the court granted plaintiff another thirty day extension of time. (Docs. 35, 36.) The thirty (30) day deadline has now expired, and plaintiff has not filed a second amended complaint 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 under section 1983.

Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the undersigned HEREBY RECOMMENDS that this action be dismissed, with prejudice, based on plaintiff's failure to state any claims upon which relief may be granted under section 1983.

These Findings and Recommendations will be 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 (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20081223

© 1992-2008 VersusLaw Inc.



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