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Mitchell v. Miro

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 17, 2010

MICHAEL J. MITCHELL, PLAINTIFF,
v.
JAVIER MIRO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff Michael J. Mitchell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is currently pending the filing of Plaintiff's second amended complaint, which was due within 30 days of the date of service of the Court's June 17, 2009 order granting Plaintiff an extension of time. Plaintiff has not filed his second amended complaint.

Plaintiff's first amended complaint was filed on September 16, 2004. (Doc. #16.) On August 13, 2007, the Court screened Plaintiff's first amended complaint. (Doc. #19.) Plaintiff's first amended complaint was dismissed for failure to state a claim upon which relief can be granted. Plaintiff was given leave to file an amended complaint within 30 days. On January 25, 2008, a findings and recommendations issued recommending that this action be dismissed because Plaintiff's first amended complaint failed to state any claims and Plaintiff had not filed a second amended complaint. (Doc. #20.) The findings and recommendations was adopted on February 26, 2008. (Doc. #22.) Plaintiff filed a motion for reconsideration on March 13, 2008. (Doc. #24.) Plaintiff argued that he filed objections to the findings and recommendations that was not addressed by the Court. Plaintiff's objections stated that he did not file a second amended complaint because he did not receive the Court's August 13, 2007 order dismissing his first amended complaint. On March 25, 2009, the Court granted Plaintiff's motion and re-opened this action. (Doc. #25.) The Court granted Plaintiff thirty days to file a second amended complaint.

On May 13, 2009, Plaintiff requested a 60 day extension of time to file his second amended complaint. (Doc. #26.) The Court granted Plaintiff's motion on May 15, 2009, but only gave Plaintiff a 30 day extension. (Doc. #27.) On June 15, 2009, Plaintiff requested an additional 30 day extension of time. (Doc. #29.) The Court granted Plaintiff's second request on June 17, 2009. (Doc. #30.) Plaintiff's second amended complaint was due within thirty days of the date of service of the June 17, 2009 order. Plaintiff has not filed a second amended complaint.

Plaintiff has been given notice of the deficiencies in his claims and an opportunity to file an amended complaint. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant should be given notice of the deficiencies in his complaint and leave to amend prior to dismissing for failure to state a claim). Plaintiff has not filed an amended complaint. The Court recommends dismissal of the claims made in Plaintiff's first amended complaint with prejudice for failure to state a claim upon which relief can be granted.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted.

These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are 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.

20100317

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