McColm v. State of California et al

Filing 53

ORDER ADOPTING 47 FINDINGS AND RECOMMENDATIONS to Dismiss with Prejudice all Claims Except Plaintiff's ADA Claims, First Amendment Claims for Retaliation, and Access to Courts, and Eighth Amendment Claims for Excessive Force and Failure to Protect; and Dismiss Plaintiff's First Amended Complaint for Failure to state a Claim signed by Chief Judge Lawrence J. O'Neill on 02/22/2018. Amended Complaint due by 3/27/2018.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICIA A. MCCOLM,

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Plaintiff,

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CASE No. 1: 14-cv-00580-LJO-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO:

v.
STATE OF CALIFORNIA, et al.,
Defendants.

1) DISMISS WITH PREJUDICE ALL
CLAIMS EXCEPT PLAINTIFF’S ADA
CLAIMS, FIRST AMENDMENT
CLAIMS FOR RETALIATION, AND
ACCESS TO COURTS, AND EIGHTH
AMENDMENT CLAIMS FOR
EXCESSIVE FORCE AND FAILURETO-PROTECT ; AND
2) DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM

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(ECF No. 47)

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THIRTY DAY DEADLINE TO FILE AN
AMENDED COMPLAINT

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Plaintiff is a former state prisoner proceeding pro se in this civil rights action
brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United
States District Court for the Eastern District of California.

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On August 14, 2017, the Magistrate Judge screened Plaintiff’s first amended

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complaint and found that it did not state any cognizable claims. (ECF No. 47.) Findings

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and recommendations were issued recommending that Plaintiff be given leave to amend

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on her claims relating to the Americans with Disability Act, First Amendment access to

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courts,1 First Amendment retaliation, Eighth Amendment excessive force, and Eighth

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Amendment failure-to-protect; but that all other claims be dismissed with prejudice. (Id.)

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Plaintiff filed objections. (ECF No. 52.)

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

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conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by

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proper analysis. Plaintiff’s objections do not raise an issue of fact or law under the

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findings and recommendations. The standards that her claims must meet are clearly laid

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out in this Court’s screening orders and her amended complaint does not meet these

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standards. Plaintiff was given multiple opportunities to file an amended complaint that

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states a claim and she has not done so. With regard to the claims that are to be

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dismissed with prejudice, the defects do not appear to be capable of cure through

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amendment.

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Court adopts the August 14, 2017, findings and recommendations
(ECF No. 47) in full;

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2.

Plaintiff’s first amended complaint is dismissed for failure to state a claim;

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3. All claims except Plaintiff’s ADA, First Amendment retaliation and access to

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courts, and Eighth Amendment excessive force and failure-to-protect claims, are

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dismissed with prejudice:

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4.

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Within thirty days of the date of this order, Plaintiff shall file a second
amended complaint curing the deficiencies identified in the screening order

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This was erroneously described in the screening order as a Fourteenth Amendment claim. However, the
Magistrate Judge correctly applied a First Amendment analysis to this claim.

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regarding her claims for violation of the ADA, First Amendment retaliation

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and access to courts, and Eighth Amendment excessive force and failure-

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to-protect;

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5.

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Failure to file an amended complaint within the time stated may result in
dismissal of the action without further notice to Plaintiff.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

February 22, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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