Miller v. Brown et al

Filing 34

ORDER Adopting Findings and Recommendations Regarding Dismissal of Action for Failure to State a Claim re 31 , 32 , signed by District Judge Lawrence J. O'Neill on 2/28/14. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY MILLER,

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Plaintiff,
v.
EDMUND G. BROWN, et al.,
Defendants.

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1:12-cv-01589-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF ACTION FOR FAILURE
TO STATE A CLAIM
(ECF Nos. 31, 32)

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Plaintiff Michael Anthony Miller (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action in the Sacramento Division of the United States District Court for the Eastern District of

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California on May 3, 2012. (ECF No. 1.) The action was transferred to the Fresno Division of

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this court on September 27, 2012. (ECF No. 15.)

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On July 31, 2013, the Court dismissed Plaintiff’s original complaint with leave to amend.

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(ECF No. 20.) On December 18, 2013, the Court dismissed Plaintiff’s first amended complaint

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with leave to amend. (ECF No. 28.) Plaintiff filed a second amended complaint on January 24,

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2014. (ECF No. 31.)

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On February 6, 2014, the Magistrate Judge issued Findings and Recommendations that

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this action be dismissed based on Plaintiff’s failure to state a cognizable section 1983 claim. The

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Findings and Recommendations were served on Plaintiff and contained notice that any

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objections were to be filed within twenty-one days. (ECF No. 32.) Plaintiff filed objections on

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February 27, 2014. (ECF No. 33.)

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

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a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s

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objections, the Court finds the Findings and Recommendations to be supported by the record and

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by proper analysis.

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Plaintiff’s varied objections, including his frivolous references to the Commercial

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Affidavit Procedure and “Affidavit of information of felonies and misdemeanors,” do not

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warrant rejection of the Magistrate Judge’s findings and recommendations. (ECF No. 33, p. 2.)

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, issued on February 5, 2014, are adopted in

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This action is DISMISSED based on Plaintiff’s failure to state a cognizable

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full;

section 1983 claim; and
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The dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §

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1915(g).

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

February 28, 2014

UNITED STATES DISTRICT JUDGE

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