Patten v. California Correctional Health Care Services et al

Filing 19

ORDER DISMISSING CASE, with Prejudice, for Failure to State a Claim; ORDER that Dismissal is Subject to 28 U.S.C. § 1915(g) signed by Magistrate Judge Erica P. Grosjean on 11/23/2015. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON PATTEN,

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Plaintiff,

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vs.

1:13-cv-01289-EPG-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO
STATE A CLAIM
(ECF No. 1.)

R. ATIENZA, et al.,

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Defendants.

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ORDER THAT DISMISSAL IS
SUBJECT TO 28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Jason Patten (APlaintiff@) is a former state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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August 15, 2013. (ECF No. 1.) On September 3, 2013, Plaintiff consented to Magistrate Judge

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jurisdiction in this action under 28 U.S.C. § 636(c), and no other parties have made an

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appearance. (ECF No. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the

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Eastern District of California, the undersigned shall conduct any and all proceedings in the case

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until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On January 21, 2015, the court screened Plaintiff’s Complaint under 28 U.S.C. §1915A

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and entered an order dismissing the Complaint for failure to state a claim, with leave to amend

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within thirty days. (ECF No. 6.) On February 24, 2015, the court dismissed this case and

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entered judgment, based on Plaintiff’s failure to comply with the thirty-day deadline in the

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court’s order. (ECF Nos. 14, 15.) On August 24, 2015, Plaintiff filed a notice of change of

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address and a motion for clarification of the status of his case. (ECF No. 16.)

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discovered that Plaintiff’s earlier change of address had not been properly reflected on the

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Court’s docket, causing Plaintiff’s court mail to be sent to the wrong address. Based on this

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finding, the Court reopened Plaintiff’s case on October 2, 2015, served Plaintiff with a copy of

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the January 21, 2015 order, and granted Plaintiff thirty days in which to file an amended

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complaint. (ECF No. 17.)

It was

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More than forty-five days have passed, and Plaintiff has not complied with or otherwise

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responded to the Court=s October 2, 2015 order. As a result, there is no pleading on file which

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sets forth any claims upon which relief may be granted. In the January 21, 2015 order, the

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Court informed Plaintiff of the deficiencies in his Complaint, and dismissed the Complaint on

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the ground that Plaintiff had failed to state a claim upon which relief could be granted.

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Because Plaintiff has not filed an amended complaint, the Court dismisses the claims

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made in the original complaint with prejudice for failure to state a claim upon which the Court

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could grant relief. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (prisoner must be

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given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a

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claim).

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Accordingly, IT IS HEREBY ORDERED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED, with prejudice, based on Plaintiff=s failure to state a claim upon which relief may

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be granted under § 1983;

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///

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2.

This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '

1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and
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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

November 23, 2015

/s/
UNITED STATES MAGISTRATE JUDGE