Rodriguez v. Isaac et al

Filing 33

ORDER ADOPTING 31 FINDINGS AND RECOMMENDATIONS for Dismissal of Plaintiff's Action With Prejudice for Failure to State a Claim and Directing Clerk of Court to Enter Judgment Counting Dismissal as a Strike Under 28 U.S.C. 1915(g), signed by Chief Judge Anthony W. Ishii on 8/3/2012. 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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NOEL RODRIGUEZ,

CASE NO.

1:09-CV-01784-AWI-MJS (PC)

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS FOR DISMISSAL
OF PLAINTIFF’S ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM AND DIRECTING CLERK OF
COURT TO ENTER JUDGMENT
COUNTING DISMISSAL AS A STRIKE
UNDER 28 U.S.C. § 1915(g)

Plaintiff,

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v.

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ISAAC, et al.,
Defendants.

(ECF NO. 31)
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Plaintiff Noel Rodriguez, a state prisoner proceeding pro se and in forma pauperis

21 filed this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) The matter
22 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and
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Local Rule 302 of the United States District Court for the Eastern District of California.

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On May 23, 2012, Findings and Recommendations for Dismissal (Findings and
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Recommendations, ECF No. 31) were filed in which the Magistrate Judge recommended

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1 dismissal of the action with prejudice for failure to state a claim. Plaintiff was notified that
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his objection, if any, was due within thirty (30) days. Plaintiff timely objected to the Findings
and Recommendations. (Objections, ECF No. 32.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has
conducted a de novo review of this case. Having carefully reviewed the entire file

7 including Plaintiff’s Objections, the Court finds the Findings and Recommendations to be
8 supported by the record and by proper analysis. As explained by the Magistrate Judge:
9 “The treatment a prisoner receives in prison and the conditions under which he is
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confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511

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U.S. 825, 832 (1994). While Plaintiff argues in the objections a lower standard should
be sufficient to state a claim, the Supreme Court is clear that to violate the Eighth

14 Amendment the prisoner must establish that prison officials were “deliberately indifferent
15 to a serious threat to the inmates's safety.” Farmer, 511 U.S. at 834.
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Accordingly, IT IS HEREBY ORDERED that:
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The Court adopts the Findings and Recommendations filed May 23, 2012,

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in full,
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2.

This action is dismissed with prejudice for failure to state a claim,

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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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23 IT IS SO ORDERED.
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Dated:
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August 3, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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