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Brady K. Armstrong v. C. Etchebehere

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


February 25, 2013

BRADY K. ARMSTRONG,
PLAINTIFF,
v.
C. ETCHEBEHERE, ET AL.,
DEFENDANTS.

FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF Nos. 6 & 18.) (THIRTY-DAY OBJECTION DEADLINE)

Plaintiff Brady K. Armstrong ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On November 5, 2012, the Court dismissed Plaintiff's complaint with leave to amend. (ECF No. 6.) In this order, Plaintiff received notice that the failure to file an amended complaint would result in the dismissal of his action, with prejudice, for failure to state a claim. (ECF No. 6.) On November 28, 2012, Plaintiff filed a motion requesting an extension of time to file an amended complaint. (ECF No. 9.) On November 30, 2012, the Court granted the extension and cautioned Plaintiff that he would receive no further extensions. (ECF No. 10.) On December 13, 2012, Plaintiff filed a second motion for an extension of time, which was granted on December 19, 2012. (ECF Nos. 11 & 12.) Subsequently, on December 26, 2012, Plaintiff filed his third motion for an extension of time. (ECF No. 13.) Plaintiff's third motion was granted on January 8, 2013, and gave Plaintiff until February 11, 2013 to file his amended complaint. (ECF No. 15.)

On January 28, 2013, Plaintiff filed a fourth motion to extend time to amend his complaint. (ECF No. 16.) Due to the fact that Plaintiff had not yet exhausted his third extension of time and because Plaintiff was advised by the Court order of November 30, 2012 that no further extensions would be granted, the Court denied Plaintiff's motion to extend time. (ECF No. 17.) On January 28, 2013, the Court ordered that Plaintiff must file an amended complaint by February 11, 2013 or his case would be dismissed pursuant to 28 U.S.C. § 1915A for failure to state any claims upon which relief may be granted. (ECF No. 17.) On February 15, 2013, Plaintiff filed a fifth motion to extend time to file an amended complaint. (ECF No. 18.) On February 19, 2013, the Court denied Plaintiff's fifth motion for extension of time. (ECF No. 19.)

Plaintiff received two separate warnings on November 30, 2012 and January 28, 2013 that no further extensions of time would be granted and that failure to file an amended complaint would result in the dismissal of his case. (ECF Nos. 10 & 17.) Plaintiff's deadline to file an amended complaint has passed and Plaintiff has not complied with 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.

Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), it is HEREBY RECOMMENDED that this action BE DISMISSED, with prejudice, based on Plaintiff's failure to state any claims upon which relief may be granted.

These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 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.

UNITED STATES MAGISTRATE JUDGE

20130225

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