UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 13, 2012
MADERA CO. DEPT. OF CORR., ET AL.,
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 UPON WHICH RELIEF MAY BE GRANTED (Doc. 22.) OBJECTIONS, IF ANY, DUE WITHIN TWENTY (20) DAYS
Rayshon Thomas ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint on May 26, 2006. (Doc. 1.) On March 24, 2008, the Court dismissed Plaintiff's Complaint for violation of Rule 8(a) of the Federal Rules of Civil Procedure, with leave to amend. (Doc. 19.) On April 28, 2008, Plaintiff filed the First Amended Complaint. (Doc. 22.)
On April 9, 2010, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim, with leave to file a Second Amended Complaint. (Doc. 36.) Plaintiff requested and was granted multiple extensions of time. On May 23, 2011, the Court granted Plaintiff a final, thirty-day extension of time in which to file the Second Amended Complaint. (Doc. 54.) Plaintiff was forewarned in the Court's order that if he "file[d] any other document, or fail[ed] to file an amended complaint, a recommendation of dismissal [would] be entered." ( Id. at 3:12-14.) Plaintiff subsequently filed four motions for extension of time, but no amended complaint. (Docs. 55, 56, 57, 58.) Thus, to date, Plaintiff has not complied with the Court's order of April 9, 2010. 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;
2. This dismissal be subject to the "three strikes" provision set forth in 28 U.S.C. 1915(g); and
3. 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 twenty (20) 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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