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Joe Vasquez v. Arnold Schwarzenegger et al

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


May 5, 2011

JOE VASQUEZ, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to U.S.C. § 1983. On January 3, 2011, the undersigned filed an order dismissing the complaint for failure to state a constitutional claim and giving plaintiff leave to file an amended complaint within twenty-eight days. On January 27, 2011, plaintiff filed a motion for reconsideration of the magistrate judge's order. On March 21, 2011, the district judge affirmed the magistrate judge's order.

To date, plaintiff has not filed an amended complaint. Rather, on April 21, 2011, he filed a brief "object[ing] to both the magistrate order filed January 3, 2011 and the . . . district judge order filed March 18, 2011." (Doc. #15.) Plaintiff's filing is not one contemplated by the Federal Rules of Civil Procedure. Therefore plaintiff's objection, noted on the case docket as a second "motion for reconsideration," will be denied as inapposite.

Furthermore, plaintiff has failed to file an amended complaint within twenty-eight days of either the magistrate judge's January 3, 2011 order or the district judge's March 21, 2011 affirmation of that order. Thus, for the reasons given in the January 3, 2011 order, this action will be dismissed with prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

Accordingly, IT IS HEREBY ORDERED that plaintiff's April 21, 2011 motion for reconsideration (Doc. #15) is denied as inapposite.

Also, IT IS HEREBY RECOMMENDED, for the reasons given in the January 3, 2010 order, that this action be dismissed with prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).

These findings and recommendations are 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 fourteen (14) 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." Any response to the objections shall be filed and served within fourteen days after service of the objections. Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.

20110505

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