Wilhelm v. Woodford

Filing 42

ORDER Adopting FINDINGS AND RECOMMENDATION, Dismissing Action Without Leave To Amend For Failure To State A Cognizable Claim, And Entering Judgment (ECF No. 30 ), signed by District Judge Anthony W. Ishii on 1/14/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVE WILHELM,

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Plaintiff,
v.
JEANNIE WOODFORD, et al.,
Defendants.

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Case No.: 1:12-cv-00386-AWI-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION, DISMISSING ACTION
WITHOUT LEAVE TO AMEND FOR FAILURE
TO STATE A COGNIZABLE CLAIM, AND
ENTERING JUDGMENT
[ECF No. 30]

Plaintiff Steve Wilhelm is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On January 15, 2014, the Magistrate Judge issued Findings and Recommendation that the

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Second Amended Complaint DISMISSED, without leave to amend for failure to state a cognizable

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claim. This Findings and Recommendation was served on Plaintiff and contained notice that any

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objections were to be filed within thirty (30) days of the date of service of the order. Instead of filing

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objections, Plaintiff filed an appeal with the Ninth Circuit within that thirty day time frame. The Ninth

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Circuit denied the appeal for lack of subject matter jurisdiction as the order challenged was not final or

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appealable. Shortly thereafter, Plaintiff filed late objections. Given this procedural history, Plaintiff’s

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objections will be considered.

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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 is suing the Director

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of the California Department of Corrections and Rehabilitation for causing Plaintiff to endure

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prolonged exposure to second hand smoke which resulted in serious health problems. However, the

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only factual allegation of personal involvement is that the Director was responsible for approving all

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rules and regulations, including permitting smoking and providing insufficient ventilation. Doc. 28. In

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reviewing Plaintiff’s First Amended Complaint, the Magistrate Judge had warned Plaintiff that this

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bare allegation was not sufficient to state a claim. Doc. 16. Plaintiff was given an opportunity to

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amend and cure this factual deficiency. Doc. 27. Plaintiff has not done so; further amendment would

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be futile.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed on January 15, 2014, are adopted in full;

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2.

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

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3.

This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011);

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4.

The Clerk of Court shall enter judgment against Plaintiff and close this case.

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IT IS SO ORDERED.

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Dated: January 14, 2015

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SENIOR DISTRICT JUDGE

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