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Cruz v. Schwarzenegger

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 7, 2009

BRIAN CRUZ, PLAINTIFF,
v.
SCHWARZENEGGER, ET AL., DEFENDANTS.

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 (Doc. 13.)

OBJECTIONS, IF ANY DUE IN 30 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. (Doc. 1.) On July 11, 2006, before the court screened the original complaint, plaintiff filed a first amended complaint. (Doc. 13.)

On May 29, 2008, the undersigned dismissed plaintiff's first amended 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.) Plaintiff requested and was granted two thirty-day extensions of time to comply with the order. (34, 35, 36, 37.) The deadline expired, and plaintiff did not file a second amended complaint or otherwise respond to the court's order. As a result, there was no pleading on file which set forth any claims upon which relief may be granted under section 1983. On December 24, 2008, the undersigned issued findings and recommendations, recommending dismissal of this action for plaintiff's failure to state a claim. (Doc. 38.) On December 24, 2008, plaintiff filed a request for an extension of time to comply with the court's order of May 29, 2008. (Doc. 39.)

On January 9, 2009, the court vacated the findings and recommendations and granted plaintiff's request for an extension of time. (Doc. 40.) On March 16, 2009, plaintiff requested a fourth extension of time, and on March 19, 2009, the court granted plaintiff another thirty days to file the second amended complaint. (Docs. 41, 42.) Now, more than forty-five days have passed, and plaintiff has not filed a second amended complaint, requested another extension of time, 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.

20090507

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