Simons v. Sundaram et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
J. SUNDARAM, et al.,
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
(ECF No. 11.)
ORDER THAT THIS CASE IS SUBJECT TO
THE “THREE STRIKES” PROVISION SET
FORTH IN § 28 U.S.C. ' 1915(g)
ORDER FOR CLERK TO CLOSE CASE
BACKGROUND AND DISCUSSION
Michael Simons (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights
action pursuant to 42 U.S.C. § 1983. On January 26, 2015, Plaintiff filed the Complaint
commencing this action. (ECF No. 1.)
On February 13, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action
pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 6.)
Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of
California, the undersigned shall conduct any and all proceedings in the case until such time as
reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened Plaintiff’s Complaint and issued an order on November 24, 2015,
requiring Plaintiff to either file an amended complaint or notify the court that he is willing to
proceed with the claims found cognizable by the court. (ECF No. 10.) On December 31, 2015,
Plaintiff filed both a First Amended Complaint and a notice that he is willing to proceed only
with the cognizable claims. (ECF Nos. 11, 12.) On October 21, 2016, the court issued an order
requesting clarification from Plaintiff whether (1) he intends to proceed only against defendants
Sundaram and Ugueze on the medical claims found cognizable by the Court in the original
Complaint filed on January 26, 2015 (ECF No. 1); or (2) he intends to proceed with the First
Amended Complaint filed on December 21, 2015. (ECF No. 14.) On March 3, 2017, Plaintiff
filed a response to the order, stating, “I would like to go forward with the case that includes
Majid Rahimfar.” (ECF No. 19.) The First Amended Complaint names Majid Rahimfar as a
defendant. Therefore, Plaintiff clarified that he wishes to proceed with the First Amended
Complaint. (ECF No. 11.)
The court screened the First Amended Complaint and issued an order on March 15,
2017, dismissing the First Amended Complaint for failure to state a claim, with leave to file a
Second Amended Complaint within thirty days. (ECF No. 20.) The thirty-day time period has
expired and Plaintiff has not filed a Second Amended Complaint or otherwise responded to the
court’s order. As a result, there is no pleading on file which sets forth any claims upon which
relief may be granted.
Accordingly, this case shall be DISMISSED, with prejudice, based on Plaintiff=s failure
to state a claim upon which relief may be granted under section 1983.
Therefore, based on the foregoing, it is HEREBY ORDERED that:
relief may be granted under § 1983;
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
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
April 28, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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