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Plata v. Woodford

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 22, 2010

MARCIAL PLATA, PLAINTIFF,
v.
WOODFORD, ET AL., DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM AND FAILURE TO OBEY A COURT ORDER OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

(Doc. 26.)

Plaintiff Marcial Plata ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 7, 2006. (Doc. 1.) Plaintiff filed his First Amended Complaint on December 10, 2008. (Doc. 19.) Plaintiff filed the Second Amended Complaint on April 24, 2009. (Docs. 25, 26.)

On June 4, 2010, the undersigned dismissed Plaintiff's Second Amended Complaint for failure to state a claim upon which relief may be granted and issued an order requiring Plaintiff to either filed a Third Amended Complaint or notify the court that he wishes to proceed with the First Amended Complaint on the claims found cognizable by the Court, within thirty days . 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). (Doc.32.) To date, Plaintiff has not complied with or otherwise responded to the Court's order.*fn1 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:

1. This action be dismissed, with prejudice, based on Plaintiff's failure to state any claims upon which relief may be granted under section 1983 and Plaintiff' s failure to obey a court order; and

2. The Clerk be DIRECTED to close this case.

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.


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