Opinion
1:15-cv-00024-AWI-GSA-PC
09-30-2015
ARCHIE CRANFORD, Plaintiff, v. A. KING, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
(ECF No. 1.)
OBJECTIONS, IF ANY, DUE IN TWENTY (20) DAYS
Archie Cranford ("Plaintiff") is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 7, 2015. (ECF No. 1.)
On May 27, 2015, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to file an Amended Complaint within thirty days. (ECF No. 10.) 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). The thirty-day deadline expired, and Plaintiff failed to file an Amended Complaint or otherwise respond to the Court's order. (Court Record.) As a result, the Court entered findings and recommendations on July 7, 2015, recommending that this case be dismissed, with prejudice, for failure to state a claim. (ECF No. 11.) On July 30, 2015, Plaintiff filed objections to the findings and recommendations, claiming that he mailed the Amended Complaint to the Court on May 31, 2015. (ECF No. 13.) The Court found no evidence on the Court's record that the Court had received Plaintiff's Amended Complaint. (Court Record.) On August 4, 2015, the Court vacated the findings and recommendations and granted Plaintiff thirty days in which to re-submit the Amended Complaint. (ECF No. 13.) The thirty-day deadline has now expired, 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.
On August 17, 2015, the U.S. Postmaster returned the court's order to the court as undeliverable, with the notation "RTS: Attempted not known; Unable to forward." (Court Record.) On August 20, 2015, the order was re-served upon Plaintiff at his address of record. (Court Record.) On August 28, 2015, the mail was again returned to the court as undeliverable. (Court Record.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party's prior address is fully effective. Local Rule 182(f). --------
Accordingly, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action be DISMISSED, with prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under section 1983, and that this dismissal be subject to the "three-strikes" provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).
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 twenty (20) days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Such a 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.
Dated: September 30 , 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE