United States District Court, Eastern District of California
January 20, 2015
FERNANDO MORENO, Plaintiff,
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAFM UPON WHICH RELIEF MAY BE GRANTED [ECF No. 5]
Plaintiff Fernando Moreno is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 3, 2014, Plaintiffs complaint was dismissed with leave to amend for failure to state a cognizable claim for relief, and an amended complaint was due within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). Plaintiff has failed to file an amended complaint or otherwise respond 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:
1. This action be DISMISSED, with prejudice, based on Plaintiffs failure to state a claim upon which relief may be granted under section 1983; and
2. This dismissal be subject to the "three-strikes" provision set forth in 28 U.S.C.§ 1915(g). Silva v. Pi Vittorio. 658 F.3d 1090, 1098-99 (9th Cir. 2011).
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)(1). 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler. 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan. 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.