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Velasquez v. Kyle

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 23, 2009

ALDO G. VELASQUEZ, PLAINTIFF,
v.
KYLE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder 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 (Doc. 14.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

Plaintiff Aldo G. Velasquez ("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 July 8, 2005. (Doc. 1.) On August 17, 2005, plaintiff filed an amended complaint. (Doc. 8.) The court screened the amended complaint pursuant to 28 U.S.C. 1915A and on November 22, 2006 issued an order dismissing the amended complaint with leave to amend. (Doc. 11.) On January 22, 2007, plaintiff filed a second amended complaint. (Doc. 14.) On October 15, 2008, the court dismissed the second amended complaint for plaintiff's failure to state a claim upon which relief may be granted, with leave to amend. (Doc. 19.) The court granted plaintiff two thirty-day extensions of time in which to file a third amended complaint. (Docs. 21, 23.) The most recent thirty-day time period has expired, and plaintiff has not complied with 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.

20090223

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