Knapp v. Virk et al
Filing
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ORDER DISMISSING CASE, With Prejudice, for Failure to State a Claim and ORDER That This Dismissal is Subject to the "Three-Strikes" Provision of 28 U.S.C. 1915(g) signed by Magistrate Judge Gary S. Austin on 7/7/2017. CASE CLOSED. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID KNAPP,
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Plaintiff,
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vs.
1:15-cv-00961-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM
(ECF No. 19.)
VIRK, et al.,
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Defendants.
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ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE “THREE STRIKES”
PROVISION OF 28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE CASE
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I.
BACKGROUND
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David Knapp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. On June 25, 2015, Plaintiff filed the
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Complaint commencing this action. (ECF No. 1.)
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On July 6, 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. 5.)
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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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On November 4, 2015, the court dismissed the Complaint for failure to state a claim,
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with leave to amend within thirty days. (ECF No. 6.) Plaintiff requested and was granted four
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extensions of time. (ECF Nos. 7, 8, 9, 10, 11, 12, 13, 14.) The final deadline to amend the
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Complaint expired, and Plaintiff did not file an amended complaint. (Court record.) On June
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30, 2016, the court issued an order to show cause, requiring Plaintiff to show cause why this
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case should not be dismissed for failure to prosecute. (ECF No. 16.) After being granted
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another extension of time, Plaintiff filed the First Amended Complaint on August 9, 2016.
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(ECF No. 19.) The court then discharged the order to show cause. (ECF No. 20.)
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On March 30, 2017, the court dismissed the First Amended Complaint for failure to
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state a claim, with leave to amend within thirty days. (ECF No. 23.) Plaintiff requested and
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was granted an extension of time. (ECF Nos. 24, 25.) The latest deadline has now expired, and
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Plaintiff has not filed the Second Amended Complaint. (Court record.)
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In the March 30, 2017 order, the court informed Plaintiff of the deficiencies in the First
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Amended Complaint and dismissed it on the ground that Plaintiff had failed to state a claim
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upon which relief could be granted. As a result, there is no pleading on file in this case which
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sets forth any claims upon which relief may be granted. Plaintiff was forewarned in the March
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30, 2017 order that this case would be dismissed for failure to state a claim if he did not file the
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Second Amended Complaint. (ECF No. 23 at 9 ¶5.) Therefore, the Court now dismisses the
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claims made in the First Amended Complaint, with prejudice, for failure to state a claim upon
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which the Court could grant relief. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
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(prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for
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failure to state a claim).
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II.
CONCLUSION
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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
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1.
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This case is dismissed, with prejudice, for failure to state a claim upon which
relief may be granted;
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///
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///
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2.
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This dismissal is subject to the “three strikes” provision of 28 U.S.C. § 1915(g);
and
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The Clerk is directed to close this case.
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IT IS SO ORDERED.
Dated:
July 7, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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