Dixon v. Gonzales et al

Filing 40

ORDER ADOPTING 36 Findings and Recommendations and DISMISSING Action With Prejudice For Failure to State a Claim, signed by District Judge Lawrence J. O'Neill on 3/14/2012. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEMMEL DIXON,

CASE NO. 1:09-cv-00172-LJO-DLB PC

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Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
ACTION WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM

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v.
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F. GONZALES, et al.,
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(DOC. 36)
Defendants.

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/
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Plaintiff Gemmel Dixon (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. On September 7, 2011, Plaintiff filed a Fourth Amended

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Complaint. Doc. 35. The matter was referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 14, 2011, the Magistrate Judge filed a Findings and Recommendations which

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was served on Plaintiff and which contained notice to Plaintiff that any objection to the Findings and

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Recommendations was to be filed within twenty-one days. Plaintiff did not file an objection, but

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instead filed a proposed Fifth Amended Complaint. Doc. 39.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

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Recommendations to be supported by the record and by proper analysis. The Court does not grant

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Plaintiff leave to file a Fifth Amended Complaint. Plaintiff’s Fifth Amended Complaint presents

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the same allegations raised in the Fourth Amended Complaint, which fails to state a claim.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed November 14, 2011, is adopted in full;

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This action is dismissed with prejudice for failure to state a claim upon which relief

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may be granted under 42 U.S.C. § 1983; and

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3.

This dismissal is subject to the “three strikes” provision of 28 U.S.C. § 1915(g).
Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
b9ed48

March 14, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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