Medina v. Lopez

Filing 19

ORDER DISMISSING CASE, with Prejudice, for Failure to State a Claim upon Which Relief may be Granted; ORDER that this Dismissal is Subject to the "Three-Strikes" Provision Set Forth in U.S.C. Section 1915(g); ORDER for Clerk to Close Case signed by Magistrate Judge Gary S. Austin on 07/08/2015. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PABLO A. MEDINA,

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Plaintiff,

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vs.
J. LOPEZ, et al.,
Defendants.

1:14-cv-01850-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED
(Doc. 12.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREESTRIKES@ PROVISION SET FORTH
IN 28 U.S.C. ' 1915(g)
ORDER FOR CLERK TO CLOSE
CASE

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Pablo A. Medina (“Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 3, 2014,

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Plaintiff and nineteen co-plaintiffs filed case 2:14-cv-2566-DAD-PC, Hicks v. Lopez, at the

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Sacramento Division of the U.S. District Court for the Eastern District of California. On

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November 12, 2014, the case was transferred to the Fresno Division of the Eastern District and

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opened as case 1:14-cv-01764-GSA-PC (Hicks v. Lopez). On November 24, 2014, the court

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issued an order severing the twenty plaintiffs’ claims in case 1:14-cv-1764-GSA-PC, and the
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present case was opened for Plaintiff, 1:14-cv-1850-GSA-PC, Medina v. Lopez. (Doc. 1.)

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Plaintiff now proceeds as the sole Plaintiff in the present case.

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On December 8, 2014, Plaintiff consented to the jurisdiction of a Magistrate Judge in

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this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance.

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(Doc. 4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3). On December 12,

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2014, Plaintiff filed the First Amended Complaint. (Doc. 5.) On February 17, 2015, with leave

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of court, Plaintiff filed the Second Amended Complaint. (Doc. 12.)

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On April 9, 2015, case 1:14-cv-1794-MJS-PC, Medina v. CDCR, was consolidated with

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the present case, and Plaintiff was granted leave to either file a Third Amended Complaint in

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the present case, or notify the court that he wishes to proceed with the Second Amended

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Complaint. (Doc. 15.) On April 24, 2015, Plaintiff filed a notice that he wished to proceed

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with the Second Amended Complaint. (Doc. 16.)

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The court screened the Second Amended Complaint pursuant to 28 U.S.C. § 1915A and

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issued an order on April 28, 2015, dismissing the Second Amended Complaint for failure to

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state a claim, with leave to file a Third Amended Complaint within thirty days. (Doc. 17.)

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The thirty-day time period has now expired, and Plaintiff has not filed a Third Amended

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Complaint or otherwise responded to the court’s order.1 As a result, there is no pleading on file

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which sets forth any claims upon which relief may be granted.

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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

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which relief may be granted under section 1983;

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///

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On May 18, 2015, the U.S. Postal Service returned the court’s order as undeliverable, with a
notation on the envelope “Return to Sender.” (Court Record.) On May 19, 2015, Plaintiff filed a notice of change
of address to 333 Linden Avenue #8, Long Beach CA 90802. (Doc. 18.) On May 21, 2015, the court re-served
the court’s order at Plaintiff’s new address. (Court Record.)
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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 of Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

July 8, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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