Carroll v. Clark et al
Filing
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ORDER Adopting Findings and Recommendations, Dismissing Action With Prejudice for Failure to State a Claim Under Section 1983, and Directing Clerk of Court to Enter Judgment 18 , 20 , 23 ; ORDER Counting Dismissal as a Strike Under 28 U.S.C. , signed by Judge Oliver W. Wanger on 4/14/2011. CASE CLOSED. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VERNON D. CARROLL,
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CASE NO. 1:09-cv-01701-OWW-SKO PC
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
ACTION WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM UNDER SECTION 1983,
AND DIRECTING CLERK OF COURT TO
ENTER JUDGMENT
v.
KEN CLARK, et al.,
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Defendants.
(Docs. 18, 20, and 23)
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ORDER COUNTING DISMISSAL AS A
STRIKE UNDER 28 U.S.C. § 1915(G)
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Plaintiff Vernon D. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action pursuant to 42 U.S.C. § 1983 on September 28, 2009. The matter was referred
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to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On February 25, 2011, a Findings and Recommendations was filed in which the Magistrate
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Judge screened Plaintiff’s amended complaint and recommended dismissal of this action for failure
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to state a claim under section 1983. 28 U.S.C. § 1915A. After receiving an extension of time,
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Plaintiff filed a timely Objection on April 11, 2011.1
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the 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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Plaintiff also seeks an order directing the United States Marshal to initiate service of process. That request
is moot in light of this order and is denied.
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Recommendations to be supported by the record and by proper analysis. Plaintiff has not stated any
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claims for violation of the Eighth Amendment and this action shall be dismissed. In his objections,
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Plaintiff references contributory and comparative negligence. (Doc. 28, p. 2.) The Court expresses
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no opinion whether Plaintiff may be able to state any claims under California tort law, as absent a
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viable federal claim, the Court will not exercise supplemental jurisdiction over state law claims. 28
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U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir.
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2001).
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Accordingly, IT IS HEREBY ORDERED that:
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The Court adopts the Findings and Recommendations filed on February 25, 2011, in
full;
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This action is dismissed, with prejudice, for failure to state a claim under section
1983;
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3.
The Clerk of the Court shall enter judgment against Plaintiff; and
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4.
This dismissal counts as a strike under 28 U.S.C. § 1915(g).
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IT IS SO ORDERED.
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Dated:
April 14, 2011
emm0d6
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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