Simons v. Sundaram et al

Filing 21

ORDER DISMISSING CASE, With Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted and ORDER That This Case is Subject to the "Three-Strikes" Provision Set Forth in 28 U.S.C. 1915(g) signed by Magistrate Judge Gary S. Austin on 4/28/2017. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SIMONS,

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Plaintiff,

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vs.
J. SUNDARAM, et al.,

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Defendants.

1:15-cv-00130-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED
(ECF No. 11.)

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ORDER THAT THIS CASE IS SUBJECT TO
THE “THREE STRIKES” PROVISION SET
FORTH IN § 28 U.S.C. ' 1915(g)

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ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND AND DISCUSSION

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Michael Simons (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. On January 26, 2015, Plaintiff filed the Complaint

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commencing this action. (ECF No. 1.)

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On February 13, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 6.)

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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).

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The court screened Plaintiff’s Complaint and issued an order on November 24, 2015,

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requiring Plaintiff to either file an amended complaint or notify the court that he is willing to

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proceed with the claims found cognizable by the court. (ECF No. 10.) On December 31, 2015,

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Plaintiff filed both a First Amended Complaint and a notice that he is willing to proceed only

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with the cognizable claims. (ECF Nos. 11, 12.) On October 21, 2016, the court issued an order

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requesting clarification from Plaintiff whether (1) he intends to proceed only against defendants
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Sundaram and Ugueze on the medical claims found cognizable by the Court in the original

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Complaint filed on January 26, 2015 (ECF No. 1); or (2) he intends to proceed with the First

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Amended Complaint filed on December 21, 2015. (ECF No. 14.) On March 3, 2017, Plaintiff

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filed a response to the order, stating, “I would like to go forward with the case that includes

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Majid Rahimfar.” (ECF No. 19.) The First Amended Complaint names Majid Rahimfar as a

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defendant. Therefore, Plaintiff clarified that he wishes to proceed with the First Amended

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Complaint. (ECF No. 11.)

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The court screened the First Amended Complaint and issued an order on March 15,

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2017, dismissing the First Amended Complaint for failure to state a claim, with leave to file a

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Second Amended Complaint within thirty days. (ECF No. 20.) The thirty-day time period has

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expired and Plaintiff has not filed a Second Amended Complaint or otherwise responded to the

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court’s order. As a result, there is no pleading on file which sets forth any claims upon which

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relief may be granted.

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Accordingly, this case shall be DISMISSED, with prejudice, based on Plaintiff=s failure

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to state a claim upon which relief may be granted under section 1983.

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II.

CONCLUSION

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Therefore, based on the foregoing, it is HEREBY ORDERED that:

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1.

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relief may be granted under § 1983;
2.

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This action is dismissed, with prejudice, for failure to state a claim upon which

This dismissal is subject to the “three-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:

April 28, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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