West v. Clance

Filing 15

ORDER signed by District Judge Lawrence J. O'Neill on 1/25/2012 adopting 14 FINDINGS AND RECOMMENDATIONS, DISMISSING CASE with prejudice for failure to state a claim under Section 1983 and directing Clerk of Court to enter Judgment. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOHN E. WEST,

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CASE NO. 1:11-cv-00851-LJO-GBC (PC)
Plaintiff,

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v.

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A. LOPEZ, et al.,

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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

Defendants.
/ Doc. 14

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On May 10, 2011, Plaintiff John E. West, a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On October 6, 2011, the Magistrate Judge screened Plaintiff’s complaint and issued an Order

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Dismissing Complaint, with Leave to Amend, for failure to state a claim. 28 U.S.C. § 1915A. On

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December 14, 2011, the Magistrate Judge issued Findings and Recommendations, recommending

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dismissal of this action for failure to state a claim. Plaintiff has not responded or objected to any of

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the Court’s orders.

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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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Recommendations to be supported by the record and by proper analysis. Plaintiff’s complaint is

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insufficient to support a claim that Defendants failed to protect him from his cellmate, in violation

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of the Eighth Amendment. See Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949-50 (2009)
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(the mere possibility of misconduct is insufficient to support a plausible claim for relief); Farmer

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v. Brennan, 511 U.S. 825, 834 (1994) (prison officials violate the Eighth Amendment only when

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they knowingly disregard a substantial risk of harm to inmate health or safety); Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”).

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Accordingly, the Court HEREBY ADOPTS the Findings and Recommendations, filed on

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December 14, 2011, in full; this action is DISMISSED, with prejudice, based on Plaintiff’s failure

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to state a claim upon which relief may be granted under 42 U.S.C. § 1983; and the Clerk of the Court

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shall enter judgment against Plaintiff. This dismissal is subject to the “three-strikes” provision set

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forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
b9ed48

January 25, 2012

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

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