Castaneda v. Cryer

Filing 11

ORDER Adopting 9 Findings and Recommendations Dismissing Action with Prejudice for Failure tot State a Claim; Dismissal Counts as Strike Pursuant to 28 USC 1915(g); Clerk to Terminate all Pending Motions and Close Case, signed by District Judge Lawrence J. O'Neill on 07/18/14. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO G. CASTANEDA,

Case No. 1:14-cv-00658-LJO-MJS (PC)

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Plaintiff,

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v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS DISMISSING
ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM

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(ECF No. 9)

CRYER,

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Defendant(s).

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DISMISSAL COUNTS AS STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)

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CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court

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for the Eastern District of California.
On June 27, 2014, the Magistrate Judge issued Findings and Recommendation that

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the action be dismissed with prejudice for failure to state a claim. (F&R’s, ECF No. 9 at ¶

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V.) Plaintiff filed Objections to the Findings and Recommendation. (Obj. to F&R’s, ECF No.

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10.)

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Plaintiff’s Objections state his willingness to pay the filing fee and seek appointment
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of counsel. However, Plaintiff has been granted in forma pauperis status. His willingness to

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pay the filing fee does not raise an issue under the Findings and Recommendation.

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Likewise his request for counsel. Even if the request for counsel were properly before the

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Court, Plaintiff does not have a constitutional right to appointed counsel, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other grounds, 154 F.3d 952,

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954 n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). Plaintiff does not allege facts demonstrating

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exceptional circumstances sufficient to support appointment of counsel. Rand, 113 F.3d at

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1525.
Plaintiff’s Objections do not raise an issue of law or fact under the Findings and
Recommendation.
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 Court

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finds the Findings and Recommendation to be supported by the record and by proper

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analysis.

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Accordingly, it is HEREBY ORDERED that:

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1.

(ECF No. 9), in full,

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The Court adopts the Findings and Recommendation filed on June 27, 2014

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The action is DISMISSED with prejudice for failure to state a claim and

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dismissal shall count as a strike pursuant to the “three strikes” provision set

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forth in 28 U.S.C. § 1915(g), and

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3.

The Clerk of the Court shall terminate all pending motions and close the case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 18, 2014

UNITED STATES DISTRICT JUDGE
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